$125,000,000 Principal Amount of 9 3/8% Senior Subordinated Notes due 2008
SUN HEALTHCARE GROUP, INC.
(Payment of Principal and Interest Guaranteed by
the Guarantors referred to within)
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
May 26, 1998
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
X.X. XXXXXX SECURITIES INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXXX & CO. INC.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 10167
Dear Sirs:
Sun Healthcare Group, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "COMPANY") proposes to amend the Purchase
Agreement (the "PURCHASE AGREEMENT"), dated as of April 29, 1998 by and among
the Company and Bear, Xxxxxxx & Co. Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, X.X. Xxxxxx Securities Inc., NationsBanc Xxxxxxxxxx
Securities LLC and Xxxxxxxx & Co. Inc. (collectively, the "INITIAL
PURCHASERS").
The capitalized terms used in this Amendment No. 1 to Purchase
Agreement (the "AMENDMENT") and not otherwise defined herein shall have the
meanings set froth in the Purchase Agreement.
1. INDEMNIFICATION. Section 7a of the Purchase Agreement is
hereby amended and restated to read in its entirety as follows:
"a. The Company and the Guarantors agree to indemnify and hold
harmless each of the Initial Purchasers and each person, if any, who controls
any of the Initial Purchasers within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation, subject to the last sentence of Section 7(c)), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Offering Memorandum, or the Preliminary Offering Memorandum or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
the Company and the Guarantors will not be liable in any such case to the extent
but only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statements or omissions from the
Preliminary Offering Memorandum that are corrected in the Offering Memorandum or
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company or the Guarantors by or on behalf of any
Initial Purchaser through the Representative expressly for use therein. The
foregoing indemnity agreement with respect to any untrue statements contained in
or omissions from the Offering Memorandum shall not inure to the benefit of any
Initial Purchaser from whom the person asserting any such losses, liabilities,
claims, damages or expenses purchased Notes, or any person controlling such
Initial Purchaser, if a copy of the Offering Memorandum as then amended or
supplemented (if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Initial Purchasers to such
person, if such is required by law to be made available to such person, at or
prior to the written confirmation of the sale of such Notes to such person and
the untrue statement contained in or the omission from such Offering Memorandum
was corrected in the Offering Memorandum as amended or supplemented. This
indemnity agreement will be in addition to any liability which the Company and
the Guarantors may otherwise have including under this Agreement."
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2. EFFECT OF AMENDMENT. Except as expressly modified by this
Amendment, the Purchase Agreement shall continue to be and remain in full force
and effect in accordance with its terms. Any future reference to the Purchase
Agreement shall be deemed to be a reference to the Purchase Agreement as
modified by this Amendment.
3. PARTIES. This Amendment shall insure solely to the benefit of,
and shall be binding upon, the Initial Purchasers, the Company and the
Guarantors and the controlling persons, directors, officers, employees and
agents referred to in Section 7 and 8 of the Purchase Agreement, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Amendment or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Notes from any of the Initial Purchasers.
3. GOVERNING LAW. This Amendment shall be governed by the laws of
the State of New York.
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If the foregoing correctly sets forth the understanding between you
and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
SUN HEALTHCARE GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
GUARANTORS, as listed on Schedule I to the
Purchase Agreement
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
X.X. XXXXXX SECURITIES INC.
NATIONSBANC XXXXXXXXXX
SECURITIES LLC
XXXXXXXX & CO. INC.
BY: BEAR, XXXXXXX, & CO. INC.
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Senior Managing Director
