Psychiatric Solutions, Inc. 73/4% Senior Subordinated Notes due 2015 PURCHASE AGREEMENT dated May 4, 2009 Banc of America Securities LLC Barclays Capital Inc. Citigroup Global Markets Inc. J.P. Morgan Securities Inc. RBC Capital Markets Corporation
Exhibit 4.1
Psychiatric Solutions, Inc.
$120,000,000
73/4% Senior Subordinated Notes due 2015
dated May 4, 0000
Xxxx xx Xxxxxxx Securities LLC
Barclays Capital Inc.
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
RBC Capital Markets Corporation
Barclays Capital Inc.
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
RBC Capital Markets Corporation
May 4, 0000
Xxxx xx Xxxxxxx Securities LLC
as Representative of the Initial Purchasers named in Schedule A
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the Initial Purchasers named in Schedule A
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Introductory. Psychiatric Solutions, Inc., a corporation organized under the laws of Delaware
(the “Company”), proposes to issue and sell to the several Initial Purchasers named in Schedule A
(the “Initial Purchasers”), acting severally and not jointly, the respective amounts set forth in
such Schedule A of $120,000,000 aggregate principal amount of the Company’s 73/4% Senior Subordinated
Notes due 2015 (the “Notes”, and together with the Guarantees (as defined below), the
“Securities”). Banc of America Securities LLC has agreed to act as the representative of the
several Initial Purchasers (the “Representative”) in connection with the offering and sale of the
Securities.
The Securities will be issued pursuant to an indenture, to be dated as of the Closing Date (as
defined below) (the “Indenture”), among the Company, each of the Guarantors (as defined below) and
U.S. Bank National Association, as trustee (the “Trustee”). The Securities will be issued only in
book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the
“Depositary”), pursuant to a letter of representations, to be dated on or before the Closing Date
(the “DTC Agreement”), among the Company, the Guarantors, the Trustee and the Depositary.
The holders of the Securities will be entitled to the benefits of a registration rights
agreement, to be dated as of the Closing Date (the “Registration Rights Agreement”), among the
Company, each of the Guarantors and the Representative, pursuant to which the Company and the
Guarantors may be required to file with the Securities and Exchange Commission (the “Commission”),
under the circumstances set forth therein, (i) a registration statement under the Securities Act of
1933 (as amended, the “Securities Act”, which term, as used herein, includes the rules and
regulations of the Commission thereunder) relating to another series of debt securities of the
Company with terms substantially identical to the Securities (the “Exchange Securities”) to be
offered in exchange for the Securities (the “Exchange Offer”) and (ii) to the extent required by
the Registration Rights Agreement, a shelf registration statement pursuant to Rule 415 of the
Securities Act relating to the resale by certain holders of the Securities, and in each case, to
use its reasonable best efforts to cause such registration statements to be declared effective.
All references herein to the Exchange Securities and the Exchange Offer are only applicable if the
Company and the Guarantors are in fact required to consummate the Exchange Offer pursuant to the
terms of the Registration Rights Agreement.
The payment of principal of and premium, if any, on the Notes will be fully and
unconditionally guaranteed (the “Guarantees”) on a senior subordinated unsecured basis, jointly and
severally by each of the Company’s direct and indirect domestic subsidiaries set forth on Schedule
B hereto (the “Guarantors”) and (ii) any subsidiary of the Company formed or acquired after the
Closing Date that executes an additional guarantee in accordance with the terms of the Indenture,
and their respective successors and assigns.
The Company understands that the Initial Purchasers propose to make an offering of the
Securities on the terms and in the manner set forth herein and in the Pricing Disclosure Package
(as defined below) and agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers (the “Subsequent Purchasers”) on the
terms set forth in the Pricing Disclosure Package (the first time when sales of the Securities are
made is referred to as the “Time of Sale”). The Securities are to be offered and sold to or
through the Initial Purchasers without being registered with the Commission under the Securities
Act, in reliance upon exemptions therefrom. Pursuant to the terms of the Securities and the
Indenture, investors who acquire Securities shall be deemed to have agreed that the Securities may
only be resold or otherwise transferred, after the date hereof, if such Securities are registered
for sale under the Securities Act or if an exemption from the registration requirements of the
Securities Act is available (including the exemptions afforded by Rule 144A under the Securities
Act (“Rule 144A”) or Regulation S under the Securities Act (“Regulation S”)).
The Company has prepared and delivered to each Initial Purchaser copies of a Preliminary
Offering Memorandum, dated May 4, 2009 (the “Preliminary Offering Memorandum”), and has prepared
and delivered to each Initial Purchaser copies of a Pricing Supplement, dated May 4, 2009 (the
“Pricing Supplement”), describing the terms of the Securities, each for use by such Initial
Purchaser in connection with its solicitation of offers to purchase the Securities. The
Preliminary Offering Memorandum and the Pricing Supplement are herein referred to as the “Pricing
Disclosure Package.” Promptly after this Agreement is executed and delivered, the Company will
prepare and deliver to each Initial Purchaser a final offering memorandum, dated the date hereof
(the “Final Offering Memorandum”). The Company hereby confirms that it has authorized the use of
the Pricing Disclosure Package and the Final Offering Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Securities by the Initial Purchasers.
All references herein to the terms “Pricing Disclosure Package” and “Final Offering
Memorandum” shall be deemed to mean and include all information filed under the Securities Exchange
Act of 1934 (as amended, the “Exchange Act,” which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder) prior to the Time of Sale and incorporated by
reference in the Pricing Disclosure Package (including the Preliminary Offering Memorandum) or the
Final Offering Memorandum (as the case may be), and all references herein to the terms “amend,”
“amendment” or “supplement” with respect to the Final Offering Memorandum shall be deemed to mean
and include all information filed under the Exchange Act after the Time of Sale and incorporated by
reference in the Final Offering Memorandum.
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The Company hereby confirms its agreements with the Initial Purchasers as follows:
SECTION 1. Representations and Warranties. Each of the Company and the Guarantors, jointly
and severally, hereby represents, warrants and covenants to each Initial Purchaser that, as of the
date hereof and as of the Closing Date (references in this Section 1 to the “Offering Memorandum”
are to (x) the Pricing Disclosure Package in the case of representations and warranties made as of
the date hereof and (y) the Pricing Disclosure Package and the Final Offering Memorandum in the
case of representations and warranties made as of the Closing Date):
(a) No Registration Required. Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 2 hereof and with the procedures set forth in
Section 7 hereof, it is not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by
this Agreement and the Offering Memorandum to register the Securities under the Securities Act or,
until such time as the Exchange Securities are issued pursuant to an effective registration
statement, to qualify the Indenture under the Trust Indenture Act of 1939 (the “Trust Indenture
Act,” which term, as used herein, includes the rules and regulations of the Commission promulgated
thereunder).
(b) No Integration of Offerings or General Solicitation. None of the Company, its affiliates
(as such term is defined in Rule 501 under the Securities Act) (each, an “Affiliate”), or any
person acting on its or any of their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation or warranty) has, directly or indirectly, solicited any offer to
buy or offered to sell, or will, directly or indirectly, solicit any offer to buy or offer to sell
any security which is or would be integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities Act. None of the Company, its
Affiliates, or any person acting on its or any of their behalf (other than the Initial Purchasers,
as to whom the Company makes no representation or warranty) has engaged or will engage, in
connection with the offering of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502 under the Securities Act. With respect to those
Securities sold in reliance upon Regulation S, (i) none of the Company, its Affiliates or any
person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S and (ii) each of the Company and its Affiliates and any person
acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no
representation or warranty) has complied and will comply with the offering restrictions set forth
in Regulation S.
(c) Eligibility for Resale Under Rule 144A. The Securities are eligible for resale pursuant
to Rule 144A and will not be, at the Closing Date, of the same class as securities listed on a
national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S.
automated interdealer quotation system.
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(d) The Pricing Disclosure Package and Offering Memorandum. The Preliminary Offering
Memorandum, as of its date, did not contain or include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; neither the Pricing
Disclosure Package, as of the Time of Sale, nor the Final Offering Memorandum, as of its date or
(as amended or supplemented in accordance with Section 3(a), as applicable) as of the Closing Date,
contains or includes an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that this representation, warranty and agreement shall not
apply to statements in or omissions from the Preliminary Offering Memorandum, the Pricing
Disclosure Package, the Final Offering Memorandum or any amendment or supplement thereto made in
reliance upon and in conformity with information furnished to the Company in writing by any Initial
Purchaser through the Representative expressly for use in the Pricing Disclosure Package, the Final
Offering Memorandum or amendment or supplement thereto, as the case may be. The Pricing Disclosure
Package contains, and the Final Offering Memorandum will contain, all the information specified in,
and meeting the requirements of, Rule 144A. The Company has not distributed and will not
distribute, prior to the later of the Closing Date and the completion of the Initial Purchasers’
distribution of the Securities, any offering material in connection with the offering and sale of
the Securities other than the Pricing Disclosure Package and the Final Offering Memorandum.
(e) Company Additional Written Communications. The Company has not prepared, made, used,
authorized, approved or distributed, and will not prepare, make, use, authorize, approve or
distribute, any written communication that constitutes an offer to sell or solicitation of an offer
to buy the Securities (each such communication by the Company or its agents and representatives
(other than a communication referred to in clauses (i) and (ii) below) a “Company Additional
Written Communication”) other than (i) the Pricing Disclosure Package, (ii) the Final Offering
Memorandum and (iii) any electronic road show or other written communications, in each case used in
accordance with Section 3(a). Each such Company Additional Written Communication, when taken
together with the Pricing Disclosure Package, at the Time of Sale did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that this representation, warranty and agreement shall not
apply to statements in or omissions from each such Company Additional Written Communication made in
reliance upon and in conformity with information furnished to the Company in writing by any Initial
Purchaser through the Representative expressly for use in any Company Additional Written
Communication.
(f) No Other Compensation. None of the Company, the Guarantors or any of its or their
respective subsidiaries has paid or agreed to pay to any person any compensation for soliciting
another to purchase the Notes (except as contemplated by this Agreement or as described in or
contemplated by the Pricing Disclosure Package, any Company Additional Written Communication and
the Final Offering Memorandum).
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(g) No Stabilization. None of the Company, the Guarantors or any of its or their respective
subsidiaries has, directly or indirectly, taken any action designed to cause or which has
constituted or which might reasonably be expected to cause or result in, under the Exchange Act
or otherwise, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(h) Incorporation and Good Standing. Each of the Company, the Guarantors and its or their
respective subsidiaries has been duly incorporated, organized or formed and is validly existing as
a corporation, limited liability company or partnership in good standing under the laws of its
jurisdiction of organization, is duly qualified to own or lease, as the case may be, and to operate
its properties and to conduct its business as described in the Pricing Disclosure Package, any
Company Additional Written Communication and the Final Offering Memorandum, except such failures to
be qualified or in good standing as would not, either individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, and, in the case of the Company
and the Guarantors, to enter into and perform their obligations under each of this Agreement, the
Registration Rights Agreement, the DTC Agreement, the Securities, the Exchange Securities and the
Indenture. Each of the Company, the Guarantors and its or their respective subsidiaries is duly
qualified to do business as a foreign corporation, limited liability company or partnership and is
in good standing under the laws of each jurisdiction in which its ownership or lease of property or
the conduct of its business requires such qualification, except such failures to be qualified or in
good standing as would not, either individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole.
(i) No Violation. None of the Company, the Guarantors or any of its or their respective
subsidiaries (i) is in violation of its charter or by-laws, (ii) is in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant, condition or other obligation contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties or assets is subject, or (iii) is
in violation of any law, ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain or maintain any license, permit,
certificate, franchise or other governmental authorization necessary to the ownership of its
property or to the conduct of its business, except in the case of clauses (ii) and (iii) for such
violations or defaults that (a) could not reasonably be expected to have a material adverse effect
on the performance of this Agreement, the Indenture, the Registration Rights Agreement or the DTC
Agreement, or the consummation of any of the transactions contemplated hereby and thereby, or (b)
could not reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company, the Guarantors and their
respective subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business (clauses (a) and (b) collectively, a “Material Adverse Effect”).
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(j) Capitalization. The Company has an authorized capitalization as set forth in the Pricing
Disclosure Package, any Company Additional Written Communication and the Final Offering Memorandum.
All of the issued shares of capital stock of the Company and the Guarantors have been duly
authorized and validly issued and are fully paid and non-assessable; and all of the issued shares
of capital stock of each Guarantor are owned directly or indirectly by the
Company or the Guarantors (except for the stock of Laurelwood Associates, Inc.), free and
clear of all liens, encumbrances, equities or claims, other than liens, encumbrances, equities or
claims under or permitted by the Company’s existing senior secured credit facilities.
(k) Purchase Agreement. Each of the Company and the Guarantors has all requisite corporate,
limited liability company or partnership power and authority to enter into this Agreement. This
Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company and the Guarantors, enforceable in accordance with its terms (assuming due
authorization, execution and delivery by the Initial Purchasers), except as rights to
indemnification and contribution hereunder may be limited by applicable law and except as the
enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting creditors’ rights generally
from time to time in effect and to general principles of equity.
(l) Indenture. Each of the Company and the Guarantors has all requisite corporate, limited
liability company or partnership power and authority to enter into the Indenture. The Indenture
has been duly authorized by the Company and each of the Guarantors, and, assuming due
authorization, execution and delivery thereof by the Trustee, when executed and delivered by the
Company and each of the Guarantors, will constitute a legal, valid and binding instrument
enforceable against the Company and each of the Guarantors in accordance with its terms (assuming
due authorization, execution and delivery by the Trustee), except as rights to indemnification and
contribution hereunder may be limited by applicable law and except as the enforcement thereof may
be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance,
preference or other laws affecting creditors’ rights generally from time to time in effect and to
general principles of equity.
(m) Notes and Guarantees. Each of the Company and the Guarantors has all requisite corporate,
limited liability company or partnership power and authority to enter into the Notes and the
Guarantees, as applicable. The Notes have been duly authorized by the Company and the Guarantees
have been duly authorized by each of the Guarantors, and when duly executed by the Company and each
of the Guarantors, as applicable, and the Notes are authenticated by the Trustee in accordance with
the provisions of the Indenture and delivered to, and paid for, by the Initial Purchasers in
accordance with the terms of this Agreement, the Notes and the Guarantees will constitute legal,
valid, binding and enforceable obligations of the Company and each of the Guarantors, respectively,
entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, preference or
other laws affecting creditors’ rights generally from time to time in effect and to general
principles of equity).
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(n) Exchange Notes and Exchange Guarantees. Each of the Company and the Guarantors has all
requisite corporate, limited liability company or partnership power and authority to enter into the
Exchange Notes and the Exchange Guarantees, as applicable. The Exchange Notes have been duly
authorized by the Company and the Exchange Guarantees have been duly authorized by each of the
Guarantors, as applicable, and when the Exchange Notes are executed and authenticated in accordance
with the provisions of the Indenture and issued and delivered to the
holders of the Securities in exchange therefor as contemplated by the Registration Rights
Agreement and the Indenture, the Exchange Notes and the Exchange Guarantees will have been duly
executed and delivered by the Company and the Guarantors, respectively, and will constitute legal,
valid and binding obligations of the Company and the Guarantors, respectively, entitled to the
benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance, preference or other laws affecting
creditors’ rights generally from time to time in effect and to general principles of equity).
(o) Registration Rights Agreement. Each of the Company and the Guarantors has all requisite
corporate, limited liability company or partnership power and authority to enter into the
Registration Rights Agreement. The Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors, and, assuming due authorization, execution and delivery thereof
by the Initial Purchasers, when executed and delivered by the Company and each of the Guarantors,
will constitute a legal, valid, binding and enforceable instrument of the Company and each of the
Guarantors (subject, as to the enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, preference or other laws affecting creditors’
rights generally from time to time in effect and to general principles of equity).
(p) Description of the Securities and the Indenture. The Securities, the Exchange Securities
and the Indenture will conform in all material respects to the respective statements relating
thereto contained in the Offering Memorandum.
(q) No Material Adverse Change. Except as otherwise disclosed in the Offering Memorandum,
subsequent to the respective dates as of which information is given in the Offering Memorandum
exclusive of any amendment or supplement thereto: (i) there has been no material adverse change,
or any development that could reasonably be expected to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business, results of operations or
prospects, whether or not arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity (any such change is called a “Material
Adverse Change”); (ii) the Company and its subsidiaries, considered as one entity, have not
incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary
course of business nor entered into any material transaction or agreement not in the ordinary
course of business; and (iii) there has been no dividend or distribution of any kind declared, paid
or made by the Company or, except for dividends paid to the Company or other subsidiaries, any of
its subsidiaries on any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock.
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(r) No Further Authorizations or Approvals Required. No consent, approval, authorization or
other order of, or registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Company’s and the Guarantors’ execution, delivery and
performance of this Agreement, the Registration Rights Agreement, the DTC Agreement or the
Indenture, or the issuance and delivery of the Securities or the Exchange Securities, or
consummation of the transactions contemplated hereby and thereby and by the Offering Memorandum,
except such as have been obtained or made by the Company and the Guarantors
and are in full force and effect under the Securities Act, applicable securities laws of the
several states of the United States or provinces of Canada and except such as may be required by
the securities laws of the several states of the United States or provinces of Canada with respect
to the Company’s and the Guarantors’ obligations under the Registration Rights Agreement.
(s) No Conflicts. None of the execution, delivery and performance of this Agreement, the
Indenture, the Registration Rights Agreement and the DTC Agreement, the issuance and sale of the
Securities or the Exchange Securities, or the consummation of any of the transactions contemplated
hereby or thereby, or the performance by the Company or any Guarantors of its obligations hereunder
or thereunder (i) will conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company, the Guarantors or any of
its or their respective subsidiaries is a party or by which the Company, the Guarantors or any of
its or their respective subsidiaries is bound or to which any of the property or assets of the
Company, the Guarantors or any of its or their respective subsidiaries is subject, (ii) will result
in any violation of the provisions of the charter or by-laws of the Company, the Guarantors or any
of its or their respective subsidiaries or (iii) will violate any applicable statute, order, rule
or regulation of any court or governmental agency or body having jurisdiction over the Company, the
Guarantors or any of its or their respective subsidiaries or any of their properties or assets,
except, with respect to clauses (i) and (iii), for such conflicts, breaches, violations or defaults
that do not have a Material Adverse Effect.
(t) Historical Financial Statements. The historical financial statements of the Company
(including the related notes and supporting schedules) included in or incorporated by reference in
the Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering
Memorandum present fairly in all material respects the financial condition and results of
operations of the entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(u) Selected Financial Data. The selected financial data set forth under the caption
“Selected Consolidated Financial and Operating Data” in the Pricing Disclosure Package, any Company
Additional Written Communication and the Final Offering Memorandum fairly present in all material
respects, on the basis stated in the Pricing Disclosure Package, any Company Additional Written
Communication and the Final Offering Memorandum, the information included therein.
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(v) Other Financial Data and Statistical Information. The other financial data, operating
data and statistical information and data of the Company included in or incorporated by reference
in the Pricing Disclosure Package, any Company Additional Written Communication and the Final
Offering Memorandum is presented fairly in all material respects and, to the extent derived
therefrom, has been prepared on a basis consistent with such financial statements and the books and
records of the Company and its subsidiaries.
(w) Independent Accountants. Ernst & Young LLP, who has certified certain historical
financial statements of the Company, whose reports are incorporated by reference in the Pricing
Disclosure Package, any Company Additional Written Communication and the Final Offering Memorandum
and who (a) has delivered the initial letter referred to in Section 5(a) hereof and (b) will
deliver on the Closing Date the bring-down letter referred to in Section 5(a) hereof, is an
independent registered public accounting firm within the meaning of Regulation S-X under the
Securities Act and the Exchange Act and the rules of the Public Company Accounting Oversight Board
during the periods covered by the financial statements on which it reported that were or are
incorporated by reference in the Pricing Disclosure Package, any Company Additional Written
Communication and the Final Offering Memorandum. Any non-audit services provided by Ernst & Young
LLP to the Company or any of the Guarantors have been approved by the Audit Committee of the Board
of Directors of the Company.
(x) No Material Actions or Proceedings. There are no legal or governmental proceedings
pending to which the Company, the Guarantors or any of its or their respective subsidiaries is a
party or of which any property or assets of the Company, the Guarantors or any of its or their
respective subsidiaries is the subject that, if determined adversely to the Company, the Guarantors
or any of its or their respective subsidiaries, would reasonably be likely to have a Material
Adverse Effect, and, to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(y) Intellectual Property. Except as would not have a Material Adverse Effect, the Company,
the Guarantors and each of their respective subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any claim of conflict with, any
such rights of others.
(z) Property. The Company, the Guarantors or each of their respective subsidiaries have good
and marketable title to all real property and good title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as are described or
incorporated by reference in the Pricing Disclosure Package, any Company Additional Written
Communication and the Final Offering Memorandum (exclusive of any amendment or supplement thereto)
and such as do not materially affect the value of the property of the Company, the Guarantors or
any of its or their respective subsidiaries taken as a whole and do not materially interfere with
the use made and proposed to be made of such property by the Company, the Guarantors or any of its
or their respective subsidiaries; and all real property and
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buildings held under lease by the
Company, the Guarantors or any of its or their respective subsidiaries are held by them under
valid, subsisting and enforceable leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and buildings by the Company,
the Guarantors or any of its or their respective subsidiaries in each case except as disclosed in
the Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering
Memorandum.
(aa) No Taxes. There are no stamp or other issuance or transfer taxes or duties or other
similar fees or charges required to be paid in connection with the execution and delivery of this
Agreement or the issuance or sale by the Company and the Guarantors of the Securities.
(bb) No Prohibition or Dividends. No subsidiary of the Company or any Guarantor is currently
prohibited, directly or indirectly, from paying any dividends to the Company or the Guarantors,
from making any other distribution on such subsidiary’s capital stock, from repaying to the Company
or the Guarantors any loans or advances to such subsidiary from the Company or the Guarantors or
from transferring any of such subsidiary’s property or assets to the Company or the Guarantors or
any other subsidiary of the Company or the Guarantors, except as described in or contemplated in
the Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering
Memorandum (exclusive of any amendment or supplement thereto).
(cc) All Necessary Permits, etc. Except as set forth in or contemplated in the Pricing
Disclosure Package, any Company Additional Written Communication and the Final Offering Memorandum
(exclusive of any amendment or supplement thereto) and except as would not have a Material Adverse
Effect, the Company, the Guarantors and each of its and their respective subsidiaries possess such
valid and current certificates, authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct their respective businesses, and
neither the Company, the Guarantors nor any of its or their respective subsidiaries has received
any notice of proceedings relating to the revocation or modification of, or non-compliance with,
any such certificate, authorization or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(dd) Accounting Controls. The Company, the Guarantors and its and their respective
subsidiaries maintain a system of internal accounting controls that is in compliance in all
material respects with the Xxxxxxxx-Xxxxx Act (as defined below) and is sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
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(ee) Tax Law Compliance. Each of the Company, the Guarantors or its or their respective
subsidiaries has filed all federal, state and local income and franchise tax returns required to be
filed through the date hereof (except in any case in which the failure to do so would not have a
Material Adverse Effect) and has paid all taxes due thereon, except with respect to any assessment
that is currently being contested in good faith or as would not have a Material Adverse Effect, and
no tax deficiency has been determined adversely to the Company, the Guarantors or any of its or
their respective subsidiaries that has had (nor does the Company, the Guarantors or any of its or
their respective subsidiaries have any knowledge of any tax deficiency that, if determined adversely to the Company, the Guarantors or any of its or their respective subsidiaries,
might have) a Material Adverse Effect. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in Section 1(t) hereof in respect of
all federal, state and foreign income and franchise taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been finally determined.
(ff) Insurance. To the extent not self-insured, the Company, the Guarantors and each of their
subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as is
customary for companies engaged in similar businesses in similar industries; and to the extent the
Company or any of its subsidiaries is self-insured, such entity is self-insured against losses in a
manner that such entity believes is commercially reasonable. The Company has no reason to believe
that it or any subsidiary will not be able (i) to renew its existing insurance coverage as and when
such policies expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost that would not
result in a Material Adverse Effect. Neither of the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has applied.
(gg) Solvency. The Company and the Guarantors on a consolidated basis are, and immediately
after the Closing Date will be, Solvent. As used herein, the term “Solvent” means, with respect to
any person on a particular date, that on such date (i) the fair market value of the assets of such
person is greater than the total amount of liabilities (including contingent liabilities) of such
person, (ii) the present fair salable value of the assets of such person is greater than the amount
that will be required to pay the probable liabilities of such person on its debts as they become
absolute and matured, (iii) such person is able to realize upon its assets and pay its debts and
other liabilities, including contingent obligations, as they mature and (iv) such person does not
have unreasonably small capital.
(hh) Labor Matters. No labor disturbance by the employees of the Company, the Guarantors or
any of its or their respective subsidiaries exists or, to the knowledge of the Company, the
Guarantors or any of its or their respective subsidiaries, is imminent that could reasonably be
expected to have a Material Adverse Effect.
(ii) ERISA Matters. Each of the Company and the Guarantors is in compliance in all material
respects with all presently applicable provisions of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published interpretations
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thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company, the Guarantors or any of its or their respective
subsidiaries would reasonably be expected to have any liability; neither the Company, the
Guarantors or any of its or their respective subsidiaries has incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to the termination of, or withdrawal from, any
“pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the “Code”); and each “pension
plan” for which the Company, the Guarantors or any of its or their respective subsidiaries would
have any liability that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would reasonably be expected to cause the loss of such
qualification. Set forth on Exhibit A hereto is a list of each employee pension or benefit plan
with respect to which the Company or any Guarantor is a party in interest or disqualified person.
(jj) Regulations T, U, X. None of the Company, the Guarantors or any of their respective
subsidiaries or any agent thereof acting on their behalf has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(kk) Compliance with Environmental Laws. Except for such matters as would not, individually
or in the aggregate, either result in a Material Adverse Effect or require disclosure in the
Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering
Memorandum, the Company, the Guarantors and its or their respective subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) (i) are conducting and have
conducted their businesses, operations and facilities in compliance with Environmental Law (as
defined below); (ii) possess, and are in compliance with, any and all permits, licenses or
registrations required under Environmental Law (“Environmental Permits”); (iii) will not require
material expenditures to maintain such compliance with Environmental Law or their Environmental
Permits or to remediate, clean up, xxxxx or remove any Hazardous Substance (as defined below); and
(iv) are not subject to any pending or, to the best knowledge of the Company, the Guarantors or any
of its or their respective subsidiaries, threatened claim or other legal proceeding under any
Environmental Laws against the Company, the Guarantors or any of its or their respective
subsidiaries, and have not been named as a “potentially responsible party” under or pursuant to any
Environmental Law. As used in this paragraph, “Environmental Law” means any and all applicable
federal, state, local and foreign laws, ordinances, regulations and common law, or any
administrative or judicial order, consent, decree or judgment thereof, relating to pollution or the
protection of human health or the environment, including, without limitation, those related to (x)
emissions, discharges, releases or threatened releases of, or exposure to, Hazardous Substances,
(y) the generation, manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances, or (z) the investigation, remediation or cleanup of
any Hazardous Substances. As used in this paragraph, “Hazardous Substances” means pollutants,
contaminants or hazardous, dangerous, toxic, biohazardous or infectious substances, materials or
wastes or any other chemical substance regulated under Environmental Laws.
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(ll) Medicare, Medicaid, etc. Except as set forth or incorporated by reference in the Pricing
Disclosure Package, any Company Additional Written Communication and the Final Offering Memorandum
(exclusive of any amendment or supplement thereto), neither the Company, the Guarantors or any of
its or their respective subsidiaries nor, to the knowledge of the Company, any other person who has
a direct or indirect ownership or control interest in the Company, the Guarantors or any of its or
their respective subsidiaries or who is an officer, director, agent or managing employee of the
Company or any of its subsidiaries (i) has engaged in any activities which are prohibited, or are
cause for criminal or civil penalties and/or mandatory or permissive exclusion from Medicare or
Medicaid, under Section 1320a-7, 1320a-7a, 1320a-7b, or 1395nn of
Title 42 of the United States Code, the federal TRICARE program and corresponding regulations,
the Federal False Claims Act 31 U.S.C. § 3729-3733, the Federal Criminal False Claims Act, 18
U.S.C. Section 287, False Statements Relating to Health Care Matters, 18 U.S.C. Section 1035,
Health Care Fraud, 18 U.S.C. Section 1347, or the privacy, security and transactions provisions of
the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), or the
regulations promulgated pursuant to such statutes or regulations or related state or local statutes
or by generally recognized professional standards of care or conduct, except for such activities as
would not, individually or in the aggregate, result in a Material Adverse Effect; (ii) has had a
civil monetary penalty assessed against it under Section 1128A of the Social Security Act (“SSA”);
(iii) is currently excluded from participation under the Medicare program or a Federal Health Care
Program (as that term is defined in SSA Section 1128(B)(f)); or (iv) has been convicted (as that
term is defined in 42 C.F.R. § 1001.2) of any of the categories of offenses described in SSA
Section 1128(a) and (b)(1), (2) and (3).
(mm) Except as set forth or incorporated by reference in the Pricing Disclosure Package, any
Company Additional Written Communication and the Final Offering Memorandum (exclusive of any
amendment or supplement thereto), (i) the Company, the Guarantors and their respective subsidiaries
possess all required permits, licenses, provider numbers, certificates, approvals (including,
without limitation, certificate of need approvals), consents, orders, certifications (including,
without limitation, certification under the Medicare, Medicaid, Tricare programs and other
governmental healthcare programs in which they participate), accreditations (including, without
limitation, accreditation by The Joint Commission) and other authorizations (collectively,
“Governmental Licenses”) issued by, and have made all required declarations and filings
with, the appropriate federal, state or local regulatory agencies or bodies and accreditation
organizations necessary to conduct the business now operated by them, except where the failure to
possess such Governmental Licenses or to make such declarations and filings would not reasonably be
expected to result in a Material Adverse Effect; (ii) the Company, the Guarantors and their
respective subsidiaries are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; (iii) all of the Governmental
Licenses are valid and in full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and effect would not
reasonably be expected to result in a Material Adverse Effect and (iv) none of the Company, the
Guarantors or any of their respective subsidiaries has received any notice of proceedings relating
to the revocation or
-13-
modification of any such Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Effect.
(nn) Investment Company Act. The Company has been advised of the rules and requirements under
the Investment Company Act of 1940, as amended (the “Investment Company Act,” which term, as used
herein, includes the rules and regulations of the Commission promulgated thereunder). None of the
Company, the Guarantors or any of their respective subsidiaries is, or after giving effect to the
offering and sale of the Notes and the application of the proceeds thereof as described in the
Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering Memorandum will be required to register as an “investment
company” as defined in the Investment Company Act.
(oo) Minutes. The minute books and records of the Company relating to proceedings of its
stockholders, board of directors and committees of its board of directors made available to Xxxxxx
Xxxxxx and Xxxxxxx llp, counsel for the Initial Purchaser, are the original minute books
and records or are true, correct and complete copies thereof, with respect to all proceedings of
said stockholders, board of directors and committees since April 30, 2006, through the date hereof.
In the event that definitive minutes have not been prepared with respect to any proceedings of
such stockholders, board of directors or committees, the Company has provided Xxxxxx Xxxxxx and
Xxxxxxx llp with originals or true, correct and complete copies of draft minutes or
written agendas relating thereto, which drafts and agendas, if any, reflect all events that
occurred in connection with such proceedings.
(pp) Disclosure Requirements. The statements contained or incorporated by reference in (i)
the Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering
Memorandum under the captions “Description of the Notes”, “Description of Other Indebtedness”,
“Notice to Investors”, “Plan of Distribution” and “Certain U.S. Federal Income Tax Considerations”
and (ii) Item 1 of Part I of the Company’s Annual Report of Form 10-K for the fiscal year ended
December 31, 2008 under the caption “Regulation and Other Factors”, in each case as amended and
supplemented by statements contained in the Pricing Disclosure Package, any Company Additional
Written Communication and the Final Offering Memorandum or documents incorporated by reference in
the Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering
Memorandum (exclusive in each case of any amendment or supplement thereto) insofar as such sections
purport to constitute a summary of the terms of the Securities, legal matters, agreements,
documents or proceedings discussed therein are accurate in all material aspects and comply in all
material respects with the requirements of the Exchange Act.
(qq) Exchange Act Compliance. The Company is subject to and in compliance in all material
respects with the reporting requirements of Section 13 or 15(d) of the Exchange Act. All reports
filed by the Company with the Commission pursuant to Section 13 or 15(d) of the Exchange Act comply
as to form in all material respects with the Exchange Act.
-14-
(rr) Effectiveness of Disclosure Controls. The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the
Exchange Act), which (i) are designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act is recorded, processed,
summarized and reported and is made known to the Company’s principal executive officer and its
principal financial officer by others within those entities, particularly during the periods in
which the periodic reports required under the Exchange Act are being prepared; (ii) have been
evaluated for effectiveness as of the end of the last fiscal quarter; and (iii) are effective in
all material respects to perform the functions for which they were established.
(ss) Evaluation of Disclosure Controls and Procedures. Based on the most recent evaluation of
its disclosure controls and procedures, the Company is not aware of (i) any significant deficiency
in the design or operation of internal controls which could adversely affect the Company’s ability
to record, process, summarize and report financial data or any material weaknesses in internal
controls; or (ii) any fraud, whether or not material, that involves management or other employees
who have a significant role in the Company’s internal controls. Since the date of the most recent
evaluation of such disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and material weaknesses.
(tt) Xxxxxxxx-Xxxxx Compliance. There is and has been no failure on the part of the Company
and any of the Company’s directors or officers, in their capacities as such, to comply in all
material respects with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Sarbanes Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to certifications.
(uu) No Brokerage Fees. Except as disclosed or incorporated by reference in the Pricing
Disclosure Package, any Company Additional Written Communication and the Final Offering Memorandum
(exclusive of any amendment or supplement thereto), there are no contracts, agreements or
understandings between the Company and any person that would give rise to a valid claim against the
Company or any Initial Purchaser for a brokerage commission, finder’s fee or other like payment in
connection with this offering.
(vv) Statistical Data. The statistical, market-related and industry data and forward-looking
statements included or incorporated by reference in the Pricing Disclosure Package, any Company
Additional Written Communication and the Final Offering Memorandum are based upon estimates by the
Company derived from sources that the Company believes to be reliable and accurate in all material
respects and represent their good faith estimates that are made on the basis of data derived from
such sources.
(ww) Related Party Transactions. No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders
or other affiliates of the Company or any of its subsidiaries, on the other, that would
-15-
be required
by the Securities Act to be described in a registration statement to be filed with the Commission
and that is not so described in each of the Pricing Disclosure Package and the Final Offering
Memorandum.
(xx) No Unlawful Contributions or Other Payments. Except as otherwise disclosed or
incorporated by reference in the Pricing Disclosure Package, any Company Additional Written
Communication and the Final Offering Memorandum, none of the Company, the Guarantors nor any of
their respective subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company
or any subsidiary, has made any contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any law or of the character necessary to be
disclosed or incorporated by reference in the Pricing Disclosure Package, any Company Additional Written Communication and the Final Offering Memorandum in order to make the
statements therein not misleading.
(yy) No Default in Senior Indebtedness. No event of default exists under any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or instrument constituting
Senior Indebtedness (as defined in the Indenture).
(zz) No Conflict with Money Laundering Laws. The operations of the Company, the Guarantors or
any of their respective subsidiaries are and have been conducted at all times in material
compliance with applicable financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company, the
Guarantors or any of their respective subsidiaries with respect to the Money Laundering Laws is
pending or, to the Company’s knowledge, threatened.
(aaa) No Conflict with OFAC Laws. None of the Company, the Guarantors or any of their
respective subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee
or Affiliate of the Company, the Guarantors or any of their respective subsidiaries is currently
subject to any sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.
(bbb) No Conflict with FCPA Laws. None of (i) the Company, the Guarantors or any of its or
their subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or
Affiliate of the Company, the Guarantors or any of its or their subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the
“FCPA”), including, without limitation, making use of the mails or any means or
-16-
instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA; and (ii) the Company, the Guarantors, its or their subsidiaries and, to
the knowledge of the Company, any Affiliate of the Company have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued compliance therewith,
except in the case of clauses (i) and (ii), as would not have a Material Adverse Effect.
(ccc) Regulation S. The Company, the Guarantors and their respective affiliates and all
persons acting on their behalf (other than the Initial Purchasers, as to whom the Company and the
Guarantors make no representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the Securities outside
the United States and, in connection therewith, the Offering Memorandum will contain the disclosure
required by Rule 902. Each of the Company and the Guarantors is a “reporting issuer”, as defined
in Rule 902 under the Securities Act.
Any certificate signed by an officer of the Company or any Guarantor and delivered to the
Initial Purchasers or to counsel for the Initial Purchasers, in connection with the transactions
contemplated by this Agreement, shall be deemed to be a representation and warranty by the Company
or such Guarantor to the Initial Purchasers as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. Each of the Company and the Guarantors agrees to issue and sell to the
Initial Purchasers, severally and not jointly, all of the Notes, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company and the Guarantors the aggregate principal
amount of Notes set forth opposite their names on Schedule A, at a purchase price of 86.895% of the
principal amount thereof payable on the Closing Date, in each case, on the basis of the
representations, warranties and agreements herein contained, and upon the terms, subject to the
conditions thereto, herein set forth.
(b) The Closing Date. Delivery of certificates for the Notes in definitive form to be
purchased by the Initial Purchasers and payment therefor shall be made at the offices of Xxxxxx
Xxxxxx and Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other place as
may be agreed to by the Company and the Representative) at 9:00 a.m. New York City time, on May 7,
2009 or such other time and date as the Representative shall designate by notice to the Company
(the time and date of such closing are called the “Closing Date”).
(c) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to the
Representative for the accounts of the several Initial Purchasers certificates for the Notes at the
Closing Date against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The certificates for the Notes shall be in
-17-
such
denominations and registered in the name of Cede & Co., as nominee of the Depositary, pursuant to
the DTC Agreement, and shall be made available for inspection on the business day preceding the
Closing Date at a location in New York City, as the Representative may designate. Time shall be of
the essence, and delivery at the time and place specified in this Agreement is a further condition
to the obligations of the Initial Purchasers.
(d) Initial Purchasers as Qualified Institutional Buyers. Each Initial Purchaser, severally
and not jointly, represents and warrants to, and agrees with, the Company that it is a “qualified
institutional buyer” within the meaning of Rule 144A (a “Qualified Institutional Buyer”).
SECTION 3. Additional Covenants. Each of the Company and the Guarantors further covenants and
agrees with each Initial Purchaser as follows:
(a) Preparation of Final Offering Memorandum; Initial Purchasers’ Review of Proposed
Amendments and Supplements and Company Additional Written Communications. As promptly as
practicable following the Time of Sale and in any event not later than the second business day
following the date hereof, the Company will prepare and deliver to the Initial Purchasers the Final
Offering Memorandum, which shall consist of the Preliminary Offering Memorandum as modified only by
the information contained in the Pricing Supplement. The Company will not amend or supplement the
Preliminary Offering Memorandum or the Pricing Supplement. The Company will not amend or
supplement the Final Offering Memorandum prior to the Closing Date unless the Representative shall
previously have been furnished a copy of the proposed amendment or supplement at least two business
days prior to the proposed use or filing, and shall not have objected to such amendment or
supplement. Before making, preparing, using, authorizing, approving or distributing any Company
Additional Written Communication, the Company will furnish to the Representative a copy of such
written communication for review and will not make, prepare, use, authorize, approve or distribute
any such written communication to which the Representative reasonably objects.
(b) Amendments and Supplements to the Final Offering Memorandum and Other Securities Act
Matters. If, prior to the later of (x) the Closing Date and (y) the completion of the placement of
the Securities by the Initial Purchasers with the Subsequent Purchasers, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Final Offering
Memorandum, as then amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Final Offering Memorandum is delivered to a Subsequent Purchaser, not
misleading, or if it is otherwise necessary to amend or supplement the Final Offering Memorandum to
comply with law, the Company agrees to promptly prepare (subject to Section 3 hereof), and furnish
at its own expense to the Initial Purchasers, amendments or supplements to the Final Offering
Memorandum so that the statements in the Final Offering Memorandum as so amended or supplemented
will not, in the light of the circumstances at the Closing Date and at the time of sale of
Securities, be misleading or so that the Final Offering Memorandum, as amended or supplemented,
will comply with all applicable law.
-18-
If required under the Registration Rights Agreement, following the consummation of the
Exchange Offer or the effectiveness of an applicable shelf registration statement and for so long
as the Securities are outstanding if, in the judgment of the Representative, the Initial Purchasers
or any of their affiliates (as such term is defined in the Securities Act) are required to deliver
a prospectus in connection with sales of, or market-making activities with respect to, the
Securities, to periodically amend the applicable registration statement so that the information
contained therein complies with the requirements of Section 10 of the Securities Act, to amend the
applicable registration statement or supplement the related prospectus or the documents
incorporated therein when necessary to reflect any material changes in the information provided
therein so that the registration statement and the prospectus will not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing as of the date the prospectus is so delivered,
not misleading and to provide the Initial Purchasers with copies of each amendment or supplement filed
and such other documents as the Initial Purchasers may reasonably request.
The Company hereby expressly acknowledges that the indemnification and contribution provisions
of Sections 8 and 9 hereof are specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to in this Section 3.
(c) Copies of the Offering Memorandum. The Company agrees to furnish the Initial Purchasers,
without charge, as many copies of the Pricing Disclosure Package and the Final Offering Memorandum
and any amendments and supplements thereto as they shall reasonably request.
(d) Blue Sky Compliance. Each of the Company and the Guarantors shall cooperate with the
Representative and counsel for the Initial Purchasers to qualify or register (or to obtain
exemptions from qualifying or registering) all or any part of the Securities for offer and sale
under the securities laws of the several states of the United States, the provinces of Canada or
any other jurisdictions designated by the Representative, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so long as required for the
distribution of the Securities. None of the Company or any of the Guarantors shall be required to
qualify as a foreign corporation or to take any action that would subject it to general service of
process in any such jurisdiction where it is not presently qualified or where it would be subject
to taxation as a foreign corporation. The Company will advise the Initial Purchasers promptly of
the suspension of the qualification or registration of (or any such exemption relating to) the
Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, each of the Company and the Guarantors shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities
sold by it in the manner described under the caption “Use of Proceeds” in the Pricing Disclosure
Package.
-19-
(f) The Depositary. The Company will cooperate with the Initial Purchasers and use its
reasonable best efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of the Depositary.
(g) Additional Issuer Information. Prior to the completion of the placement of the Securities
by the Initial Purchasers with the Subsequent Purchasers, the Company shall file, on a timely
basis, with the Commission and the Nasdaq National Market all reports and documents required to be
filed under Section 13 or 15 of the Exchange Act. Additionally, at any time when the Company is
not subject to Section 13 or 15 of the Exchange Act, for the benefit of holders and beneficial
owners from time to time of the Securities, the Company shall furnish, at its expense, upon
request, to holders and beneficial owners of Securities and prospective purchasers of
Securities information (“Additional Issuer Information”) satisfying the requirements of
Rule 144A(d).
(h) Agreement Not To Offer or Sell Additional Securities. During the period of 90 days
following the date hereof, the Company will not, without the prior written consent of Banc of
America Securities LLC (which consent may be withheld at the sole discretion of Banc of America
Securities LLC), directly or indirectly, sell, offer, contract or grant any option to sell, pledge,
transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the
Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any
registration statement under the Securities Act in respect of, any debt securities of the Company
or securities exchangeable for or convertible into debt securities of the Company (other than as
contemplated by this Agreement and to register the Exchange Securities).
(i) Future Reports to the Initial Purchasers. At any time when the Company is not subject to
Section 13 or 15 of the Exchange Act and any Securities or Exchange Securities remain outstanding,
the Company will furnish to the Representative and, upon request, to each of the other Initial
Purchasers: (i) as soon as practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as of the close of such fiscal
year and statements of income, stockholders’ equity and cash flows for the year then ended and the
opinion thereon of the Company’s independent public or certified public accountants; (ii) as soon
as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form
10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or any
securities exchange; and (iii) as soon as available, copies of any report or communication of the
Company mailed generally to holders of its capital stock or debt securities (including the holders
of the Securities), if, in each case, such documents are not filed with the Commission within the
time periods specified by the Commission’s rules and regulations under Section 13 or 15 of the
Exchange Act.
(j) No Integration. The Company agrees that it will not and will cause its Affiliates not to
make any offer or sale of securities of the Company of any class if, as a result of the doctrine of
“integration” referred to in Rule 502 under the Securities Act, such offer or sale would render
invalid (for the purpose of (i) the sale of the Securities by the Company to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers to Subsequent
-20-
Purchasers or
(iii) the resale of the Securities by such Subsequent Purchasers to others) the exemption from the
registration requirements of the Securities Act provided by Section 4(2) thereof or by Rule 144A or
by Regulation S thereunder or otherwise.
(k) No General Solicitation or Directed Selling Efforts. None of the Company or any of its
affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as
to which no covenant is given) will (i) solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising within the meaning of Rule 502(c)
of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act or (ii) engage in any directed selling efforts within the meaning of
Regulation S, and all such persons will comply with the offering restrictions requirement of
Regulation S.
(l) No Restricted Resales. During the period of one year after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities
Act) to resell any of the Notes which constitute “restricted securities” under Rule 144 that have
been reacquired by any of them.
(m) Legended Securities. Each certificate for a Security will bear the legend contained in
“Notice to Investors” in the Preliminary Offering Memorandum for the time period and upon the other
terms stated in the Preliminary Offering Memorandum.
The Representative, on behalf of the several Initial Purchasers, may, in its sole discretion,
waive in writing the performance by the Company or any Guarantor of any one or more of the
foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. Each of the Company and the Guarantors, jointly and
severally, agrees to pay all costs, fees and expenses incurred in connection with the performance
of its obligations hereunder and in connection with the transactions contemplated hereby,
including, without limitation, (i) all expenses incident to the issuance and delivery of the
Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Securities to the Initial
Purchasers, (iii) all fees and expenses of the Company’s and the Guarantors’ counsel, independent
public or certified public accountants and other advisors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of the Pricing
Disclosure Package and the Final Offering Memorandum (including financial statements and exhibits),
and all amendments and supplements thereto, this Agreement, the Registration Rights Agreement, the
Indenture, the DTC Agreement and the Securities, (v) all filing fees, attorneys’ fees and expenses
incurred by the Company, the Guarantors or the Initial Purchasers in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration of) all or any part of
the Securities for offer and sale under the securities laws of the several states of the United
States, the provinces of Canada or other jurisdictions designated by the Initial Purchasers
(including, without limitation, the cost of preparing, printing and mailing preliminary and final
blue sky or legal investment memoranda and any related supplements to the Pricing Disclosure
Package or the Final Offering Memorandum, (vi) the fees and expenses of the Trustee, including
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the
fees and disbursements of counsel for the Trustee in connection with the Indenture, the Securities
and the Exchange Securities, (vii) any fees payable in connection with the rating of the Securities
or the Exchange Securities with the ratings agencies, (viii) any filing fees incident to the review
by FINRA, if any, of the terms of the sale of the Securities or the Exchange Securities, and (ix)
all fees and expenses (including reasonable fees and expenses of counsel) of the Company and the
Guarantors in connection with approval of the Securities by the Depositary for “book-entry”
transfer, and the performance by the Company and the Guarantors of their respective other
obligations under this Agreement counsel and (x) all expenses incident to the “road show” for the
offering of the Securities. Except as provided in this Section 4 and Sections 6, 8 and 9 hereof,
the Initial Purchasers shall pay their own expenses, including the fees and disbursements of
their counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The obligations of the
several Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing
Date shall be subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors set forth in Section 1 hereof as of the date hereof and as of the
Closing Date as though then made and to the timely performance by the Company of its covenants and
other obligations hereunder, and to each of the following additional conditions:
(a) Accountants’ Comfort Letter. On the date hereof, the Initial Purchasers shall have
received from Ernst & Young LLP, independent public or certified public accountants for the
Company, a “comfort letter” dated the date hereof addressed to the Initial Purchasers,
in form and substance satisfactory to the Representative, covering the financial information in the
Preliminary Offering Memorandum and the Pricing Supplement and other customary matters. In
addition, on the Closing Date, the Initial Purchasers shall have received from such accountants, a
“bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, in form and
substance satisfactory to the Representative, in the form of the “comfort letter” delivered on the
date hereof, except that (i) it shall cover the financial information in the Final Offering
Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a
date no more than 5 days prior to the Closing Date.
(b) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representative there shall not have occurred any Material
Adverse Change; and
(ii) there shall not have occurred 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 the Company
or any of its subsidiaries or any of their securities or indebtedness by any “nationally
recognized statistical rating organization” as such term is defined for purposes of Rule 436
under the Securities Act.
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(c) Opinion of Counsel for the Company. On the Closing Date the Initial Purchasers shall have
received the opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, counsel for the Company, dated as of
such Closing Date, the form of which is attached as Exhibit B.
(d) Opinion of Counsel for the Initial Purchasers. On the Closing Date the Initial Purchasers
shall have received the opinion of Xxxxxx Xxxxxx and Xxxxxxx llp, counsel for the Initial
Purchasers, dated as of such Closing Date, with respect to such matters as may be reasonably
requested by the Initial Purchasers.
(e) Officers’ Certificate. On the Closing Date the Initial Purchasers shall have received a
written certificate executed by the Chairman of the Board, Chief Executive Officer or President of
the Company and each Guarantor and the Chief Financial Officer or Chief Accounting Officer of the
Company and each Guarantor, dated as of the Closing Date, to the effect set forth in
Section 5(b)(ii) hereof, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior to the Closing
Date there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the Company set forth in
Section 1 hereof were true and correct in all material respects as of the date hereof and
are true and correct in all material respects as of the Closing Date with the same force and
effect as though expressly made on and as of the Closing Date; and
(iii) the Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date.
(f) Registration Rights Agreement. The Company shall have entered into the Registration
Rights Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(g) Depositary. The Securities shall be eligible for clearance and settlement through the
Depositary.
(h) Additional Documents. On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Securities as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or agreements, herein
contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representative by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8 and 9 hereof shall at all times be
effective and shall survive such termination.
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SECTION 6. Reimbursement of Initial Purchasers’ Expenses. If this Agreement is terminated by
the Representative pursuant to Section 5 or 10 hereof, including if the sale to the Initial
Purchasers of the Securities on the Closing Date is not consummated because of any refusal,
inability or failure on the part of the Company to perform any agreement herein or to comply with
any provision hereof other than by reason of a default by any of the Initial Purchasers, the
Company agrees to reimburse the Initial Purchasers, severally, upon demand for all out-of-pocket
expenses that shall have been reasonably incurred by the Initial Purchasers in connection with the
proposed purchase and the offering and sale of the Securities, including, without limitation, fees and disbursements of counsel, printing expenses, travel expenses, postage,
facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial Purchasers, on the one
hand, and the Company and each of the Guarantors, on the other hand, hereby agree to observe the
following procedures in connection with the offer and sale of the Securities:
(A) Offers and sales of the Securities will be made only by the Initial Purchasers or
Affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are
made. Each such offer or sale shall only be made to persons whom the offeror or seller
reasonably believes to be Qualified Institutional Buyers or non-U.S. persons outside the
United States to whom the offeror or seller reasonably believes offers and sales of the
Securities may be made in reliance upon Regulation S upon the terms and conditions set forth
in Annex I hereto, which Annex I is hereby expressly made a part hereof.
(B) The Securities will be offered by approaching prospective Subsequent Purchasers on
an individual basis. No general solicitation or general advertising (within the meaning of
Rule 502 under the Securities Act) will be used in the United States in connection with the
offering of the Securities.
(C) Upon original issuance by the Company, and until such time as the same is no longer
required under the applicable requirements of the Securities Act, the Securities (and all
securities issued in exchange therefor or in substitution thereof, other than the Exchange
Securities) shall bear the following legend:
“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A
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THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE
MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE
OF THE SECURITY EVIDENCED HEREBY.”
Following the sale of the Securities by the Initial Purchasers to Subsequent Purchasers
pursuant to the terms hereof, the Initial Purchasers shall not be liable or responsible to the
Company for any losses, damages or liabilities suffered or incurred by the Company, including any
losses, damages or liabilities under the Securities Act, arising from or relating to any resale or
transfer of any Security.
SECTION 8. Indemnification.
(a) Indemnification of the Initial Purchaser. Each of the Company and the Guarantors, jointly
and severally, agrees to indemnify and hold harmless each Initial Purchaser, its directors,
officers and employees, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or
expense, as incurred, to which such Initial Purchaser, director, officer, employee or controlling
person may become subject, under the Securities Act, the Exchange Act or other
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federal or state
statutory law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the Company or without the
written consent of the Company as contemplated by Section 8(d)), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or
is based: (i) upon any untrue statement or alleged untrue statement of a material fact contained
in the Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional Written
Information or the Final Offering Memorandum (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; or (ii) in
whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iii) in whole or in part upon any failure of the
Company to perform its obligations hereunder or under law; or (iv) any act or failure to act or any
alleged act or failure to act by any Initial Purchaser in connection with, or relating in any
manner to, the offering contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon any matter covered by clause
(i) above, provided that the Company shall not be liable under this clause (iv) to the extent that
a court of competent jurisdiction shall have determined by a final judgment that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Initial Purchaser through its gross negligence or willful misconduct;
and to reimburse each Initial Purchaser and each such director, officer, employee or controlling
person for any and all expenses (including the fees and disbursements of counsel chosen by Banc of
America Securities LLC) as such expenses are reasonably incurred by such Initial Purchaser or such
director, officer, employee or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action;
provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out of or based upon
any untrue statement or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company by the Representative
expressly for use in the Preliminary Offering Memorandum, the Pricing Supplement, any Company
Additional Written Information or the Final Offering Memorandum (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Indemnification of the Company and the Guarantors. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, each Guarantor, each of
their respective directors, officers and employees and each person, if any, who controls the
Company or any Guarantor within the meaning of the Securities Act or the Exchange Act, against any
loss, claim, damage, liability or expense, as incurred, to which the Company, any Guarantor or any
such director, officer, employee or controlling person may become subject, under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is effected with the
written consent of such Initial Purchaser), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or is based
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upon any
untrue statement or alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum, the Pricing Supplement, any Company Additional Written Information or the
Final Offering Memorandum (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Preliminary Offering Memorandum, the Pricing Supplement, any
Company Additional Written Information or the Final Offering Memorandum (or any amendment or
supplement thereto), in reliance upon and in conformity with written information furnished to the
Company by such Initial Purchaser through the Representative expressly for use therein; and to
reimburse the Company, any Guarantor and each such director,
officer, employee or controlling person for any and all expenses (including the fees and
disbursements of counsel) as such expenses are reasonably incurred by the Company, any Guarantor or
such director or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action. Each of the
Company and the Guarantors hereby acknowledges that the only information that the Initial
Purchasers through the Representative have furnished to the Company expressly for use in the
Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional Written Information
or the Final Offering Memorandum (or any amendment or supplement thereto) are the statements set
forth in the third, seventh, eighth and tenth paragraphs and the second sentence under the sixth
paragraph under the caption “Plan of Distribution” in the Preliminary Offering Memorandum and the
Final Offering Memorandum. The indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate
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counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party under this Section 8
for any legal or other expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one separate counsel (together
with local counsel), approved by the indemnifying party (Banc of America Securities LLC in the case
of Sections 8(b) and 9 hereof), representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after
notice of commencement of the action, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by this Section 8, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request or disputed in good faith the indemnified party’s entitlement to
such reimbursement prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (ii) does not include any statements as to or any
findings of fault, culpability or failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution. If the indemnification provided for in Section 8 hereof is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Securities pursuant to this Agreement or (ii) if the allocation
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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 Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
in connection with the statements or omissions or inaccuracies in the representations and
warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received by the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in connection with
the offering of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Securities pursuant to
this Agreement (before deducting expenses) received by the Company, and the total discount received
by the Initial Purchasers bear to the aggregate initial offering price of the Securities. The
relative fault of the Company and the Guarantors, on the one hand, and the Initial Purchasers, on
the other hand, shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact or any such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company and the Guarantors, on the one hand, or the Initial Purchasers,
on the other hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or inaccuracy.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8 hereof, any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions set forth in
Section 8 hereof with respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no additional notice shall
be required with respect to any action for which notice has been given under Section 8 hereof for
purposes of indemnification.
The Company, the Guarantors and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 which does not take account of the equitable considerations referred to in this Section
9.
Notwithstanding the provisions of this Section 9, no Initial Purchasers shall be required to
contribute any amount in excess of the discount received by such Initial Purchaser in connection
with the Securities distributed by it. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 of the Securities 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 9 are several, and not joint, in proportion to their respective
commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any, who controls an
Initial Purchaser within the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as such Initial Purchaser, and each director, officer and employee of
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the
Company or any Guarantor, and each person, if any, who controls the Company or any Guarantor with
the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution
as the Company and the Guarantors.
SECTION 10. Termination of This Agreement. Prior to the Closing Date, this Agreement may be
terminated by the Representative by notice given to the Company if at any time: (i) trading or
quotation in any of the Company’s securities shall have been suspended or limited by the Commission
or by the Nasdaq Stock Market, or trading in securities generally on either the Nasdaq Stock Market
or the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such quotation system or stock exchange by the
Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal,
New York or Delaware authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change in the United States
or international financial markets, or any substantial change or development involving a
prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Representative
is material and adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities in the manner and on the terms described in the Pricing
Disclosure Package or to enforce contracts for the sale of securities; (iv) in the judgment of the
Representative there shall have occurred any Material Adverse Change; or (v) the Company shall have
sustained a loss by strike, fire, flood, earthquake, accident or other calamity of such character
as in the judgment of the Representative may interfere materially with the conduct of the business
and operations of the Company regardless of whether or not such loss shall have been insured. Any
termination pursuant to this Section 10 shall be without liability on the part of (i) the Company
or any Guarantor to any Initial Purchaser, except that the Company and the Guarantors shall be
obligated to reimburse the expenses of the Initial Purchasers pursuant to Sections 4 and 6 hereof,
(ii) any Initial Purchaser to the Company, or (iii) any party hereto to any other party except that
the provisions of Sections 8 and 9 hereof shall at all times be effective and shall survive such
termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Guarantors, their
respective officers and the several Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any Initial Purchaser, the Company, any Guarantor or any of their partners, officers or
directors or any controlling person, as the case may be, and will survive delivery of and payment
for the Securities sold hereunder and any termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and shall be mailed,
hand delivered, couriered or facsimiled and confirmed to the parties hereto as follows:
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If to the Initial Purchasers:
| Banc of America Securities LLC Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Facsimile: (000) 000-0000 Attention: Legal Department |
with a copy to:
| Xxxxxx Xxxxxx and Xxxxxxx llp 00 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|||
| Facsimile: (000) 000-0000 Attention: Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx |
If to the Company or the Guarantors:
| Psychiatric Solutions, Inc. 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxxxx, Xxxxxxxxx 00000 Facsimile: (000) 000-0000 Attention: Xxxxxxxxxxx X. Xxxxxx, Esq. |
with a copy to:
| Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP 000 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, Xxxxxxxxx 00000 Facsimile: (000) 000-0000 Attention: Xxxxx X. Xxxxx III, Esq. |
Any party hereto may change the address or facsimile number for receipt of communications by
giving written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto, and to the benefit of the indemnified parties referred to in Sections 8 and 9
hereof, and in each case their respective successors, and no other person will have any right or
obligation hereunder. The term “successors” shall not include any Subsequent Purchaser of other
purchaser of the Securities as such from any of the Initial Purchasers merely by reason of such
purchase.
SECTION 14. Authority of the Representative. Any action by the Initial Purchasers hereunder
may be taken by Banc of America Securities LLC on behalf of the Initial Purchasers,
-31-
and any such
action taken by Banc of America Securities LLC shall be binding upon the Initial Purchasers.
SECTION 15. Partial Unenforceability. The invalidity or unenforceability of any section,
paragraph or provision of this Agreement shall not affect the validity or enforceability of any
other section, paragraph or provision hereof. If any section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
Any legal suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of
the United States of America located in the City and County of New York or the courts of the State
of New York located in the City and County of New York (collectively, the “Specified Courts”), and
each party irrevocably submits to the exclusive jurisdiction (except for suits, actions, or
proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a
Related Proceeding a “Related Judgment”, as to which such jurisdiction is non-exclusive) of the
Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by
mail to such party’s address set forth above shall be effective service of process for any Related
Proceeding brought in any Specified Court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any Specified Proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that
any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
Each party not located in the United States irrevocably appoints CT Corporation System, as its
agent to receive service of process or other legal summons for purposes of any Related Proceeding
that may be instituted in any Specified Court.
SECTION 17. Default of One or More of the Several Initial Purchasers. If any one or more of
the several Initial Purchasers shall fail or refuse to purchase Securities that it or they have
agreed to purchase hereunder on the Closing Date, and the aggregate number of Securities which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not exceed 10% of the aggregate number of the Securities to be purchased on such date, the other
Initial Purchasers shall be obligated, severally, in the proportions that the number of Securities
set forth opposite their respective names on Schedule A bears to the aggregate number of Securities
set forth opposite the names of all such non-defaulting Initial Purchasers, or in such other
proportions as may be specified by the Initial Purchasers with the consent of the non-defaulting
Initial Purchasers, to purchase the Securities which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase on the Closing Date. If any one or more of the
Initial Purchasers shall fail or refuse to purchase Securities and the
-32-
aggregate number of
Securities with respect to which such default occurs exceeds 10% of the aggregate number of
Securities to be purchased on the Closing Date, and arrangements satisfactory to the Initial
Purchasers and the Company for the purchase of such Securities are not made within 48 hours after
such default, this Agreement shall terminate without liability of any party to any other party
except that the provisions of Sections 4, 6, 8 and 9 hereof shall at all times be effective and
shall survive such termination. In any such case either the Initial Purchasers or the Company
shall have the right to postpone the Closing Date, as the case may be, but in no event for longer
than seven days in order that the required changes, if any, to the Final Offering Memorandum or any
other documents or arrangements may be effected.
As used in this Agreement, the term “Initial Purchaser” shall be deemed to include any person
substituted for a defaulting Initial Purchaser under this Section 17. Any action taken under this
Section 17 shall not relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
SECTION 18. No Advisory or Fiduciary Responsibility. Each of the Company and the Guarantors
acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to this
Agreement, including the determination of the offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company and the
Guarantors, on the one hand, and the several Initial Purchasers, on the other hand, and the Company
and the Guarantors are capable of evaluating and understanding and understand and accept the terms,
risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with
each transaction contemplated hereby and the process leading to such transaction each Initial
Purchaser is and has been acting solely as a principal and is not the agent or fiduciary of the
Company, Guarantors or their respective affiliates, stockholders, creditors or employees or any
other party; (iii) no Initial Purchaser has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company or any Guarantor with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such Initial Purchaser
has advised or is currently advising the Company or any Guarantor on other matters) or any other
obligation to the Company and the Guarantors except the obligations expressly set forth in this
Agreement; (iv) the several Initial Purchasers and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Company and the
Guarantors and that the several Initial Purchasers have no obligation to disclose any of such
interests by virtue of any fiduciary or advisory relationship; and (v) the Initial Purchasers have
not provided any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting,
regulatory and tax advisors to the extent they deemed appropriate.
The Company and the Guarantors hereby waive and release, to the fullest extent permitted by
law, any claims that the Company and the Guarantors may have against the Initial Purchasers with
respect to any breach or alleged breach of fiduciary duty.
SECTION 19. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous
-33-
oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
-34-
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours,
| PSYCHIATRIC SOLUTIONS, INC. |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
-35-
GUARANTORS:
ABS LINCS DC, LLC
ABS LINCS KY, INC.
ABS LINCS NJ, INC.
ABS LINCS PA, INC.
ABS LINCS SC, INC.
ABS LINCS TN, INC.
ABS LINCS TX, INC.
ABS LINCS VA, INC.
ABS LINCS, LLC
ABS-FIRST STEP, INC.
ALLIANCE CROSSINGS, LLC
ALLIANCE HEALTH CENTER, INC.
ALTERNATIVE BEHAVIORAL SERVICES, INC.
ATLANTIC SHORES HOSPITAL, LLC
BEHAVIORAL EDUCATIONAL SERVICES, INC.
BEHAVIORAL HEALTHCARE LLC
BENCHMARK BEHAVIORAL HEALTH SYSTEM, INC.
BHC ALHAMBRA HOSPITAL, INC.
BHC BELMONT PINES HOSPITAL, INC.
BHC CEDAR VISTA HOSPITAL, INC.
BHC FAIRFAX HOSPITAL, INC.
BHC FORT LAUDERDALE HOSPITAL, INC.
BHC FOX RUN HOSPITAL, INC.
BHC FREMONT HOSPITAL, INC.
BHC HEALTH SERVICES OF NEVADA, INC.
BHC HERITAGE OAKS HOSPITAL, INC.
BHC HOLDINGS, INC.
BHC INTERMOUNTAIN HOSPITAL, INC.
BHC MANAGEMENT SERVICES OF LOUISIANA, LLC
BHC MANAGEMENT SERVICES OF NEW MEXICO, LLC
BHC MANAGEMENT SERVICES OF STREAMWOOD,LLC
BHC MESILLA VALLEY HOSPITAL, LLC
BHC MONTEVISTA HOSPITAL, INC.
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
BHC PINNACLE POINTE HOSPITAL, INC.
BHC PROPERTIES, LLC
BHC SIERRA VISTA HOSPITAL, INC.
BHC SPIRIT OF ST. LOUIS HOSPITAL, INC.
ABS LINCS KY, INC.
ABS LINCS NJ, INC.
ABS LINCS PA, INC.
ABS LINCS SC, INC.
ABS LINCS TN, INC.
ABS LINCS TX, INC.
ABS LINCS VA, INC.
ABS LINCS, LLC
ABS-FIRST STEP, INC.
ALLIANCE CROSSINGS, LLC
ALLIANCE HEALTH CENTER, INC.
ALTERNATIVE BEHAVIORAL SERVICES, INC.
ATLANTIC SHORES HOSPITAL, LLC
BEHAVIORAL EDUCATIONAL SERVICES, INC.
BEHAVIORAL HEALTHCARE LLC
BENCHMARK BEHAVIORAL HEALTH SYSTEM, INC.
BHC ALHAMBRA HOSPITAL, INC.
BHC BELMONT PINES HOSPITAL, INC.
BHC CEDAR VISTA HOSPITAL, INC.
BHC FAIRFAX HOSPITAL, INC.
BHC FORT LAUDERDALE HOSPITAL, INC.
BHC FOX RUN HOSPITAL, INC.
BHC FREMONT HOSPITAL, INC.
BHC HEALTH SERVICES OF NEVADA, INC.
BHC HERITAGE OAKS HOSPITAL, INC.
BHC HOLDINGS, INC.
BHC INTERMOUNTAIN HOSPITAL, INC.
BHC MANAGEMENT SERVICES OF LOUISIANA, LLC
BHC MANAGEMENT SERVICES OF NEW MEXICO, LLC
BHC MANAGEMENT SERVICES OF STREAMWOOD,LLC
BHC MESILLA VALLEY HOSPITAL, LLC
BHC MONTEVISTA HOSPITAL, INC.
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
BHC PINNACLE POINTE HOSPITAL, INC.
BHC PROPERTIES, LLC
BHC SIERRA VISTA HOSPITAL, INC.
BHC SPIRIT OF ST. LOUIS HOSPITAL, INC.
BHC STREAMWOOD HOSPITAL, INC.
XXXXXX CENTER, LLC
BRENTWOOD ACQUISITION, INC.
BRENTWOOD ACQUISITION-SHREVEPORT, INC.
XXXXX XXXX HOSPITAL, INC.
BY THE SEA PHYSICIAN PRACTICE, LLC
CALVARY CENTER, INC.
CANYON RIDGE HOSPITAL, INC.
CEDAR SPRINGS HOSPITAL, INC.
CENTENNIAL PEAKS HOSPITAL, LLC
CHILDREN’S TREATMENT SOLUTIONS, LLC
COLLABORATIVE CARE LLC
COLUMBUS HOSPITAL PARTNERS, LLC
COLUMBUS HOSPITAL, LLC
COMMUNITY CORNERSTONES, INC.
COMPASS HOSPITAL, INC.
XXXXXXXX FIRST EDUCATION, INC.
CUMBERLAND HOSPITAL, LLC
CUMBERLAND HOSPITAL PARTNERS, LLC
DIAMOND GROVE CENTER, LLC
EMPLOYEE ASSISTANCE SERVICES, INC.
FHCHS OF PUERTO RICO, INC.
FIRST CORRECTIONS – PUERTO-RICO, INC.
FIRST HOSPITAL CORPORATION OF NASHVILLE
FIRST HOSPITAL CORPORATION OF VIRGINIA BEACH
FIRST HOSPITAL PANAMERICANO, INC.
FORT LAUDERDALE HOSPITAL, INC.
GREAT PLAINS HOSPITAL, INC.
GULF COAST TREATMENT CENTER, INC.
H.C. CORPORATION
HAVENWYCK HOSPITAL INC.
HHC AUGUSTA, INC.
HHC BERKELEY, INC.
HHC XXXXXX INVESTMENT, INC.
HHC XXXXXX CITY, INC.
HHC DELAWARE, INC.
HHC FOCUS FLORIDA, INC.
HHC INDIANA, INC.
HHC KINGWOOD INVESTMENT, LLC
HHC OCONEE, INC.
HHC OHIO, INC.
XXXXXX CENTER, LLC
BRENTWOOD ACQUISITION, INC.
BRENTWOOD ACQUISITION-SHREVEPORT, INC.
XXXXX XXXX HOSPITAL, INC.
BY THE SEA PHYSICIAN PRACTICE, LLC
CALVARY CENTER, INC.
CANYON RIDGE HOSPITAL, INC.
CEDAR SPRINGS HOSPITAL, INC.
CENTENNIAL PEAKS HOSPITAL, LLC
CHILDREN’S TREATMENT SOLUTIONS, LLC
COLLABORATIVE CARE LLC
COLUMBUS HOSPITAL PARTNERS, LLC
COLUMBUS HOSPITAL, LLC
COMMUNITY CORNERSTONES, INC.
COMPASS HOSPITAL, INC.
XXXXXXXX FIRST EDUCATION, INC.
CUMBERLAND HOSPITAL, LLC
CUMBERLAND HOSPITAL PARTNERS, LLC
DIAMOND GROVE CENTER, LLC
EMPLOYEE ASSISTANCE SERVICES, INC.
FHCHS OF PUERTO RICO, INC.
FIRST CORRECTIONS – PUERTO-RICO, INC.
FIRST HOSPITAL CORPORATION OF NASHVILLE
FIRST HOSPITAL CORPORATION OF VIRGINIA BEACH
FIRST HOSPITAL PANAMERICANO, INC.
FORT LAUDERDALE HOSPITAL, INC.
GREAT PLAINS HOSPITAL, INC.
GULF COAST TREATMENT CENTER, INC.
H.C. CORPORATION
HAVENWYCK HOSPITAL INC.
HHC AUGUSTA, INC.
HHC BERKELEY, INC.
HHC XXXXXX INVESTMENT, INC.
HHC XXXXXX CITY, INC.
HHC DELAWARE, INC.
HHC FOCUS FLORIDA, INC.
HHC INDIANA, INC.
HHC KINGWOOD INVESTMENT, LLC
HHC OCONEE, INC.
HHC OHIO, INC.
-2-
HHC POPLAR SPRINGS, INC.
HHC RIVER PARK, INC.
HHC SERVICES, LLC
HHC SOUTH CAROLINA, INC.
HHC ST. XXXXXX, INC.
HHC TOLEDO, INC.
HMHM OF TENNESSEE, LLC
XXXXX HILL HOSPITAL, LLC
HORIZON BEHAVIORAL SERVICES, LLC
HORIZON HEALTH AUSTIN, INC.
HORIZON HEALTH CORPORATION
HORIZON HEALTH HOSPITAL SERVICES, LLC
HORIZON HEALTH PHYSICAL REHABILITATION SERVICES, LLC
HORIZON MENTAL HEALTH MANAGEMENT, LLC
HSA HILL CREST CORPORATION
HSA OF OKLAHOMA, INC.
INDIANA PSYCHIATRIC INSTITUTES, LLC
INFOSCRIBER CORPORATION
KIDS BEHAVIORAL HEALTH OF UTAH, INC.
KINGWOOD PINES HOSPITAL, LLC
KMI ACQUISITION, LLC
KOLBURN SCHOOL, LLC
LAKELAND BEHAVIORAL, LLC
XXXXXX XXXX BEHAVIORAL HEALTH CENTER, INC.
LAURELWOOD ASSOCIATES, INC.
LEBANON HOSPITAL PARTNERS, LLC
LIBERTY POINT BEHAVIORAL HEALTHCARE, LLC
MENTAL HEALTH OUTCOMES, LLC
MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC.
MICHIGAN PSYCHIATRIC SERVICES, INC.
MISSION VISTA BEHAVIORAL HEALTH SERVICES, INC.
NASHVILLE REHAB, LLC
NORTH SPRING BEHAVIORAL HEALTHCARE, INC.
NORTHERN INDIANA PARTNERS, LLC
OCALA BEHAVIORAL HEALTH, LLC
HHC RIVER PARK, INC.
HHC SERVICES, LLC
HHC SOUTH CAROLINA, INC.
HHC ST. XXXXXX, INC.
HHC TOLEDO, INC.
HMHM OF TENNESSEE, LLC
XXXXX HILL HOSPITAL, LLC
HORIZON BEHAVIORAL SERVICES, LLC
HORIZON HEALTH AUSTIN, INC.
HORIZON HEALTH CORPORATION
HORIZON HEALTH HOSPITAL SERVICES, LLC
HORIZON HEALTH PHYSICAL REHABILITATION SERVICES, LLC
HORIZON MENTAL HEALTH MANAGEMENT, LLC
HSA HILL CREST CORPORATION
HSA OF OKLAHOMA, INC.
INDIANA PSYCHIATRIC INSTITUTES, LLC
INFOSCRIBER CORPORATION
KIDS BEHAVIORAL HEALTH OF UTAH, INC.
KINGWOOD PINES HOSPITAL, LLC
KMI ACQUISITION, LLC
KOLBURN SCHOOL, LLC
LAKELAND BEHAVIORAL, LLC
XXXXXX XXXX BEHAVIORAL HEALTH CENTER, INC.
LAURELWOOD ASSOCIATES, INC.
LEBANON HOSPITAL PARTNERS, LLC
LIBERTY POINT BEHAVIORAL HEALTHCARE, LLC
MENTAL HEALTH OUTCOMES, LLC
MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC.
MICHIGAN PSYCHIATRIC SERVICES, INC.
MISSION VISTA BEHAVIORAL HEALTH SERVICES, INC.
NASHVILLE REHAB, LLC
NORTH SPRING BEHAVIORAL HEALTHCARE, INC.
NORTHERN INDIANA PARTNERS, LLC
OCALA BEHAVIORAL HEALTH, LLC
-3-
PALMETTO BEHAVIORAL HEALTH HOLDINGS, LLC
PALMETTO BEHAVIORAL HEALTH SOLUTIONS, LLC
PALMETTO BEHAVIORAL HEALTH SYSTEM, L.L.C.
PALMETTO LOWCOUNTRY BEHAVIORAL HEALTH, L.L.C.
PALMETTO PEE DEE BEHAVIORAL HEALTH, L.L.C.
PEAK BEHAVIORAL HEALTH SERVICES, LLC
PREMIER BEHAVIORAL SOLUTIONS OF FLORIDA, INC.
PREMIER BEHAVIORAL SOLUTIONS, INC.
PRIDE INSTITUTE, INC.
PSYCHIATRIC MANAGEMENT RESOURCES, INC.
PSYCHIATRIC SOLUTIONS HOSPITALS, LLC
PSYCHIATRIC SOLUTIONS OF VIRGINIA, INC.
PSYCHMANAGEMENT GROUP, INC.
RAMSAY MANAGED CARE, LLC
RAMSAY YOUTH SERVICES OF GEORGIA, INC.
RAMSAY YOUTH SERVICES PUERTO RICO, INC.
RED ROCK BEHAVIORAL HEALTH LLC
RED ROCK SOLUTIONS, LLC
RESOURCES FOR LIVING, LLC
RIVEREDGE HOSPITAL HOLDINGS, INC.
RIVEREDGE HOSPITAL, INC.
ROCKFORD ACQUISITION SUB, INC.
ROLLING HILLS HOSPITAL, LLC
SAMSON PROPERTIES, LLC
SERVICIOS CONDUCTUALES DEL CARIBE, INC.
SHADOW MOUNTAIN BEHAVIORAL HEALTH SYSTEM, LLC
SOMERSET, INCORPORATED
SP BEHAVIORAL, LLC
SPRINGFIELD HOSPITAL, INC.
SUMMIT OAKS HOSPITAL, INC.
SUNSTONE BEHAVIORAL HEALTH, LLC
TBD ACQUISITION, LLC
PALMETTO BEHAVIORAL HEALTH SOLUTIONS, LLC
PALMETTO BEHAVIORAL HEALTH SYSTEM, L.L.C.
PALMETTO LOWCOUNTRY BEHAVIORAL HEALTH, L.L.C.
PALMETTO PEE DEE BEHAVIORAL HEALTH, L.L.C.
PEAK BEHAVIORAL HEALTH SERVICES, LLC
PREMIER BEHAVIORAL SOLUTIONS OF FLORIDA, INC.
PREMIER BEHAVIORAL SOLUTIONS, INC.
PRIDE INSTITUTE, INC.
PSYCHIATRIC MANAGEMENT RESOURCES, INC.
PSYCHIATRIC SOLUTIONS HOSPITALS, LLC
PSYCHIATRIC SOLUTIONS OF VIRGINIA, INC.
PSYCHMANAGEMENT GROUP, INC.
RAMSAY MANAGED CARE, LLC
RAMSAY YOUTH SERVICES OF GEORGIA, INC.
RAMSAY YOUTH SERVICES PUERTO RICO, INC.
RED ROCK BEHAVIORAL HEALTH LLC
RED ROCK SOLUTIONS, LLC
RESOURCES FOR LIVING, LLC
RIVEREDGE HOSPITAL HOLDINGS, INC.
RIVEREDGE HOSPITAL, INC.
ROCKFORD ACQUISITION SUB, INC.
ROLLING HILLS HOSPITAL, LLC
SAMSON PROPERTIES, LLC
SERVICIOS CONDUCTUALES DEL CARIBE, INC.
SHADOW MOUNTAIN BEHAVIORAL HEALTH SYSTEM, LLC
SOMERSET, INCORPORATED
SP BEHAVIORAL, LLC
SPRINGFIELD HOSPITAL, INC.
SUMMIT OAKS HOSPITAL, INC.
SUNSTONE BEHAVIORAL HEALTH, LLC
TBD ACQUISITION, LLC
-4-
TBJ BEHAVIORAL CENTER, LLC
TEXAS HOSPITAL HOLDINGS, INC.
TEXAS HOSPITAL HOLDINGS, LLC
THE COUNSELING CENTER OF MIDDLE TENNESSEE, INC.
THE NATIONAL DEAF ACADEMY, LLC
THE PINES RESIDENTIAL TREATMENT CENTER, INC.
THE XXXXXXX GROUP, INC.
THERAPEUTIC SCHOOL SERVICES, L.L.C.
THREE RIVERS BEHAVIORAL HEALTH, LLC
THREE RIVERS HEALTHCARE GROUP, LLC
THREE RIVERS RESIDENTIAL TREATMENT | MIDLANDS CAMPUS, INC.
THREE RIVERS SPE HOLDING, LLC
THREE RIVERS SPE MANAGER, INC.
THREE RIVERS SPE, LLC
TRANSITIONAL CARE VENTURES, INC.
TUCSON HEALTH SYSTEMS, INC.
UNIVERSITY BEHAVIORAL, LLC
XXXXX VISTA HOSPITAL PARTNERS, LLC
XXXXX VISTA, LLC
VIRGIN ISLANDS BEHAVIORAL SERVICES, INC.
WEKIVA SPRINGS CENTER, LLC
XXXXXXXXX HOLDINGS, INC.
XXXXXXXXX REGIONAL HOSPITAL
ACQUISITION, LLC
WILLOW SPRINGS, LLC
WINDMOOR HEALTHCARE, INC.
WINDMOOR HEALTHCARE OF PINELLAS PARK, INC.
WORK & FAMILY BENEFITS, INC.
ZEUS ENDEAVORS, LLC
TEXAS HOSPITAL HOLDINGS, INC.
TEXAS HOSPITAL HOLDINGS, LLC
THE COUNSELING CENTER OF MIDDLE TENNESSEE, INC.
THE NATIONAL DEAF ACADEMY, LLC
THE PINES RESIDENTIAL TREATMENT CENTER, INC.
THE XXXXXXX GROUP, INC.
THERAPEUTIC SCHOOL SERVICES, L.L.C.
THREE RIVERS BEHAVIORAL HEALTH, LLC
THREE RIVERS HEALTHCARE GROUP, LLC
THREE RIVERS RESIDENTIAL TREATMENT | MIDLANDS CAMPUS, INC.
THREE RIVERS SPE HOLDING, LLC
THREE RIVERS SPE MANAGER, INC.
THREE RIVERS SPE, LLC
TRANSITIONAL CARE VENTURES, INC.
TUCSON HEALTH SYSTEMS, INC.
UNIVERSITY BEHAVIORAL, LLC
XXXXX VISTA HOSPITAL PARTNERS, LLC
XXXXX VISTA, LLC
VIRGIN ISLANDS BEHAVIORAL SERVICES, INC.
WEKIVA SPRINGS CENTER, LLC
XXXXXXXXX HOLDINGS, INC.
XXXXXXXXX REGIONAL HOSPITAL
ACQUISITION, LLC
WILLOW SPRINGS, LLC
WINDMOOR HEALTHCARE, INC.
WINDMOOR HEALTHCARE OF PINELLAS PARK, INC.
WORK & FAMILY BENEFITS, INC.
ZEUS ENDEAVORS, LLC
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
-5-
| H.C. PARTNERSHIP BY: H.C. CORPORATION HSA HILL CREST CORPORATION |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| SHC-KPH, LP BY: HHC KINGWOOD INVESTMENT, LLC |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| BY: KINGWOOD PINES HOSPITAL, LLC | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
-6-
| BHC OF INDIANA, GENERAL PARTNERSHIP BY: COLUMBUS HOSPITAL PARTNERS, LLC LEBANON HOSPITAL PARTNERS, LLC NORTHERN INDIANA PARTNERS, LLC XXXXX VISTA HOSPITAL PARTNERS, LLC |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| BLOOMINGTON XXXXXXX, GENERAL PARTNERSHIP | ||||
| BY: BHC OF INDIANA, GENERAL PARTNERSHIP | ||||
| BY: COLUMBUS HOSPITAL PARTNERS, LLC LEBANON HOSPITAL PARTNERS, LLC NORTHERN INDIANA PARTNERS, LLC XXXXX VISTA HOSPITAL PARTNERS, LLC |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| BY: INDIANA PSYCHIATRIC INSTITUTES, LLC | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
-7-
| HICKORY TRAIL HOSPITAL, L.P. HIGH PLAINS BEHAVIORAL HEALTH, X.X. XXXXXXXX HOSPITAL, L.P. TEXAS CYPRESS CREEK HOSPITAL, L.P. TEXAS WEST OAKS HOSPITAL, L.P. NEURO INSTITUTE OF AUSTIN, L.P. TEXAS XXXXXX XXXXX HOSPITAL, L.P. TEXAS OAKS PSYCHIATRIC HOSPITAL, L.P. TEXAS SAN MARCOS TREATMENT CENTER, L.P. |
||||
| BY: TEXAS HOSPITAL HOLDINGS, LLC, as General Partner |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
The foregoing Purchase Agreement is hereby confirmed and accepted by the Initial Purchaser as
of the date first above written.
| Banc of America Securities LLC | ||||
By:
|
/s/ Xxxxxxxxxxx Xxxxx Wall
|
|||
| Title: Principal | ||||
| Barclays Capital Inc. | ||||
By:
|
/s/ Xxxxx Xxxxxxxx
|
|||
| Title: Managing Director | ||||
-8-
| Citigroup Global Markets Inc. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|||
| Title: Director | ||||
| X.X. Xxxxxx Securities Inc. | ||||
By:
|
/s/ Xxxxxx Xxxx
|
|||
| Title: Managing Director | ||||
| RBC Capital Markets Corporation | ||||
By:
|
/s/ Xxxxx X. Xxxxxxx
|
|||
| Title: Managing Director | ||||
-9-