================================================================================
EXHIBIT 1.1
XXXXX HEALTHCARE CORPORATION
and
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION,
X.X. XXXXXX SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
------------------------------------
PURCHASE AGREEMENT
------------------------------------
Dated as of June 13, 2000
================================================================================
XXXXX HEALTHCARE CORPORATION
9 1/4% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
June 13, 2000
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Xxxxx Healthcare
Corporation, a Nevada corporation (the "Company"), proposes to issue and sell to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ"), X.X. Xxxxxx
Securities Inc., Banc of America Securities LLC and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (together with DLJ, the "Initial Purchasers") an
aggregate of $400,000,000 principal amount of its 9 1/4% Senior Notes due 2010
(the "Securities"). The Securities are to be issued pursuant to the provisions
of an Indenture (the "Indenture") to be dated as of June 16, 2000, by and
between the Company and The Bank of New York, as Trustee (the "Trustee").
1. OFFERING MEMORANDUM. The Securities will be offered and sold to the
Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended, including the rules
and regulations thereunder (collectively, the "Act"). The Company has prepared
an offering memorandum, dated June 13, 2000 (including the documents
incorporated by reference therein, the "Offering Memorandum"), relating to the
Securities.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Securities (and all securities
issued in exchange therefor, in substitution thereof or upon conversion thereof)
shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSORS) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR A
BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), OR (B)
IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATIONS UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE
DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM
THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY) AND, IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER IF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations
and warranties contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell to the Initial Purchasers, and
the Initial Purchasers agree, severally and not jointly, to purchase from the
Company the Securities in the respective principal amounts set forth opposite
their names on Schedule I hereto, plus such amount as they may individually
become obligated to purchase pursuant to Section 9 hereof, at a purchase price
equal to 98.875% of the principal amount of the Securities, together with
accrued interest, if any, to the Closing Date (the "Purchase Price"). The
Initial Purchasers will offer the Securities to Eligible Purchasers initially at
a price equal to 100% of the principal amount thereof. Such prices may be
changed at any time without notice.
The Initial Purchasers have advised the Company that the Initial Purchasers
will make offers (the "Exempt Resales") of the Securities purchased hereunder on
the terms set forth in the Offering Memorandum, as amended or supplemented,
solely to (i) persons whom the Initial Purchaser reasonably believe to be
"qualified institutional buyers" as defined in Rule 144A under the Act ("QIBs")
and (ii) to persons permitted to purchase the Securities in offshore
transactions in reliance upon Regulation S under the Act (each, a "Regulation S
Purchaser") (such persons specified in clauses (i) and (ii) being referred to
herein as the "Eligible Purchasers").
Holders (including subsequent transferees) of the Securities will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Securities constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with
- 2 -
the Securities and Exchange Commission (the "Commission") under the
circumstances set forth therein, a registration statement (the "Registration
Statement") relating to the Securities and to use its commercially reasonable
efforts to cause such Registration Statements to be declared and remain
effective and usable for the periods specified in the Registration Rights
Agreement. This Agreement, the Indenture, the Securities, and the Registration
Rights Agreement are hereinafter sometimes referred to collectively as the
"Operative Documents."
3. DELIVERY AND PAYMENT. Delivery to you of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on June 16, 2000
(such time and date being referred to as the "Closing Date"), at the offices of
DLJ at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as you
shall reasonably designate.
The Securities in definitive form shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date, and shall be made available to you
at the offices of DLJ (or at such other place as shall be acceptable to you) for
inspection not later than 10:00 A.M., New York City time, on the business day
next preceding the Closing Date. The Securities shall be delivered to you on the
Closing Date with any transfer taxes payable upon initial issuance thereof duly
paid by the Company, for your respective accounts against payment of the
appropriate Purchase Price by wire transfer of immediately available funds to an
account designated by the Company. The Closing Date and the location of delivery
of, and the form of payment for, the Securities may be varied by agreement
between DLJ and the Company.
4. AGREEMENTS OF THE COMPANY. The Company agrees with each of you that:
(a) It will advise DLJ promptly and, if requested by DLJ, confirm
such advice in writing, (i) of the issuance by any state securities
commission of any stop order suspending the qualification or exemption from
qualification of any Securities for offering or sale in any jurisdiction
designated by the Initial Purchasers pursuant to Section 4(f), or the
initiation of any proceeding by any state securities commission or any
other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 4(e),
which makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The Company shall use its best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of the
Securities under any Federal or state securities or Blue Sky laws, and, if
at any time any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption of the
Securities under any state securities or Blue Sky laws, the Company shall
use every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) It will furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company, without charge, as
many copies of the Offering Memorandum, including all documents
incorporated by reference therein, and any amendments or supplements
thereto, as the Initial Purchasers may reasonably request for the time
period referred to in Section 4(e). Subject to the Initial Purchasers'
compliance with its representations and warranties and agreements set forth
in Section 6 hereof, the Company consents to the use of the Offering
Memorandum, including all documents incorporated by reference therein, and
any amendments and supplements thereto required pursuant hereto, by the
Initial Purchasers in connection with Exempt Resales.
(c) If, during the period referred to in Section 4(e), any event
shall occur as a result of which it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein,
in the light of the circumstances when such Offering Memorandum is
delivered to an Eligible Purchaser, not misleading, or if it is necessary
to amend or supplement the Offering Memorandum to comply with any law, it
will promptly prepare an appropriate amendment or supplement to the
Offering Memorandum so that the statements in the Offering Memorandum, as
so amended or supplemented, will not, in the light of the circumstances
existing as of the date the Offering Memorandum is so delivered, be
misleading, and will
- 3 -
comply with applicable law, and will promptly notify you of such event and
amendment or supplement and furnish to you without charge such number of
copies thereof as you may reasonably request.
(d) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be responsible
for all reasonable costs, charges, expenses, fees and taxes incurred in
connection with or incident to (i) the preparation, printing, filing,
distribution and delivery of the Offering Memorandum and all amendments and
supplements thereto, (ii) the issuance and delivery of the Securities,
(iii) the printing and delivery of this Agreement, the Indenture and all
other agreements, memoranda, reports, correspondence and other documents
printed, distributed and delivered in connection with the offering of the
Securities, (iv) the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the jurisdictions
referred to in paragraph (f) below (including, in each case, the reasonable
fees and disbursements of counsel relating to such registration or
qualification and memoranda relating thereto and any filing fees in
connection therewith), (v) furnishing such copies of the Offering
Memorandum and all amendments and supplements to any of them, including any
document incorporated by reference therein, as may be reasonably requested
by the Initial Purchasers or by dealers to whom Securities may be sold,
(vi) any filing with the National Association of Securities Dealers, Inc.
(the "NASD") in connection with the offering of the Securities (including,
without limitation, any filing fees in connection therewith but excluding
the fees of Xxxxxxxx & Xxxxxxxx, legal counsel to the Underwriters
("Initial Purchasers' Counsel")), (vii) the application for quotation of
the Securities in the NASD Automated Quotation System - PORTAL ("PORTAL"),
(viii) the rating of the Securities by investment rating agencies, (ix) any
"qualified independent underwriter" as required by Rule 2720 of the NASD
(including fees and disbursements of counsel for such qualified independent
underwriter) and (x) the performance by the Company of its other
obligations under this Agreement, including (without limitation) the fees
of the Trustee, the cost of its respective personnel and other internal
costs, the cost of printing and engraving the certificates representing the
Securities, and all expenses incident to the sale and delivery of the
Securities to the Initial Purchasers.
(e) During such period as in the reasonable judgment of the Initial
Purchasers an Offering Memorandum is required (or would be required if the
sales were registered under the Securities Act) to be delivered in
connection with Exempt Resales by the Initial Purchasers, it will not make
any amendment or supplement to the Offering Memorandum (other than any
document required to be filed under the Securities Exchange Act of 1934, as
amended, including the rules and regulations thereunder (collectively, the
"Exchange Act") that upon filing is deemed to be incorporated by reference
therein) of which the Initial Purchasers shall not previously have been
advised and provided a copy prior to the filing thereof or to which the
Initial Purchasers shall reasonably object unless in the opinion of legal
counsel to the Company such amendment or supplement is required by law to
be filed; it will furnish to you at or prior to the filing thereof a copy
of any document that upon filing is deemed to be incorporated by reference
in the Offering Memorandum; and it will prepare, promptly upon the Initial
Purchasers' reasonable request, any amendment or supplement to the Offering
Memorandum which may be necessary or advisable in connection with such
Exempt Resales and to which the Company shall not reasonably object.
(f) Prior to the sale of all Securities pursuant to Exempt Resales as
contemplated hereby, it will cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Securities for offer and sale to the Initial
Purchasers and pursuant to Exempt Resales under the securities or Blue Sky
laws of such United States jurisdictions as the Initial Purchasers may
request. The Company will continue such qualification in effect so long as
required by law for Exempt Resales and will file such consents to service
of process or other documents as may be necessary in order to effect such
registration or qualification (PROVIDED, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified nor to take any action that would subject it to
general consent to service of process in any jurisdiction in which it is
not now so subject).
- 4 -
(g) So long as any of the Securities remain outstanding and during
any period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, it will make available to any holder of Securities in
connection with any sale thereof and any prospective purchaser of such
Securities from such holder, the information ("Rule 144A Information")
required by Rule 144A(d)(4) under the Act.
(h) It will file timely all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act and it will use its best efforts to effect the inclusion of the
Securities in PORTAL and to maintain the listing of the Securities on
PORTAL for so long as the Securities are outstanding.
(i) To the extent permitted by law, it will not voluntarily claim,
and will actively resist any attempts to claim, the benefit of any usury
laws against the holders of the Securities.
(j) It will use the proceeds from the sale of the Securities in the
manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(k) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, it will not offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
or warrants, rights, or options to purchase debt securities of the Company
(other than (i) the Securities and (ii) commercial paper issued in the
ordinary course of business), without your prior written consent.
(l) It will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after the Closing Date and will use its reasonable best efforts to satisfy
all conditions precedent on its part to be satisfied prior to the delivery
of the Securities.
5. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
each Initial Purchaser that:
(a) The Offering Memorandum does not, and any supplement or amendment
to it will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or
omissions from the Offering Memorandum (or any supplement or amendment
thereto) based upon information relating to the Initial Purchasers
furnished to the Company in writing by the Initial Purchasers expressly for
use therein. No stop order preventing the use of the Offering Memorandum,
or any amendment or supplement thereto, or any order asserting that any of
the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) The documents incorporated by reference in the Offering
Memorandum or any amendment or supplement thereto, when they were or are
filed with the Commission under the Exchange Act, as the case may be,
conformed or will conform in all material respects with the requirements of
the Exchange Act.
(c) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any United States Federal or
state governmental body, agency or official which prevents the issuance of
the Securities, prevents or suspends the use of any Offering Memorandum or
suspends the sale of the Securities in any jurisdiction referred to in
Section 4(f) hereof; no injunction, restraining order, or order of any
nature by any Federal or state court has been issued with respect to the
Company or any of its subsidiaries which would prevent the issuance or sale
of the Securities, or prevent or suspend the use of any Offering Memorandum
in any jurisdiction referred to in Section 4(f) hereof.
- 5 -
(d) The capitalization table set forth in the Offering Memorandum
under the caption "Capitalization" identifies in reasonable detail all
outstanding short-term and long-term indebtedness and shareholders' equity
of the Company and its subsidiaries, prior to and after giving PRO FORMA
effect to the consummation of the offering of the Securities and the
application of the net proceeds therefrom on the terms described in the
Offering Memorandum.
(e) The Indenture has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms, will be a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar
laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a waiver of
rights under any usury laws may be unenforceable. On the Closing Date, the
Indenture will conform in all material respects to the requirements of the
Trust Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture
Act"), and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.
(f) The Securities have been duly authorized by the Company and, when
executed and delivered by the Company and authenticated by the Trustee in
accordance with the Indenture and paid for in accordance with the terms of
this Agreement, will constitute legal, valid and binding obligations of the
Company, enforceable against the Company according to their terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity) and
except to the extent that a waiver of rights under any usury laws may be
unenforceable, will be entitled to the benefits of the Indenture and will
conform in all material respects to the description thereof in the Offering
Memorandum.
(g) This Agreement has been duly authorized and validly executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws affecting
creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity) and except to the extent that rights to indemnification and
contribution with respect to liability in connection with Federal or state
securities laws may be unenforceable under such laws or the policies
underlying such laws and except to the extent that a waiver of rights under
any usury laws may be unenforceable.
(h) The Registration Rights Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company. When the Registration Rights Agreement has been
duly executed and delivered, the Registration Rights Agreement will be a
valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Registration Rights Agreement will
conform in all material respects to the description thereof in the Offering
Memorandum.
(i) The execution and delivery of this Agreement and the Indenture
and issuance and sale of the Securities by the Company, the execution and
delivery of each of the other Operative Documents by the Company, the
performance by the Company of this Agreement, the Indenture and the other
Operative Documents and the consummation of the transactions contemplated
by this Agreement and the other Operative Documents will not conflict with
or result in a breach or violation of any of the respective charters or
bylaws of the Company or any of its subsidiaries (each, a "Subsidiary" and
collectively, the "Subsidiaries") or any of the terms or provisions of, or
constitute a default or cause an acceleration of any obligation under or
result in
- 6 -
the imposition or creation of (or the obligation to create or impose) any
security interest, mortgage, pledge, claim, lien, encumbrance or adverse
interest of any nature (each, a "Lien") with respect to, any of the
Operative Documents or any other obligation, bond, agreement, note,
debenture, or other evidence of indebtedness, or any indenture, mortgage,
deed of trust or other agreement, lease or instrument (collectively,
"Agreements") to which the Company or any of the Subsidiaries is a party or
by which it or any of them is bound, or to which any properties of the
Company or any of the Subsidiaries is or may be subject, or any order of
any court or governmental agency, body or official having jurisdiction over
the Company or any of the Subsidiaries or any of their properties, or
violate or conflict with any statute, rule or regulation or administrative
regulation or decree or court decree applicable to the Company or any of
the Subsidiaries, or any of their respective assets or properties, where,
in any such instance, such conflict, breach, violation, default,
acceleration of indebtedness or Lien would have, singly or in the
aggregate, a material adverse effect on the business, financial condition,
results of operations or prospects of the Company and the Subsidiaries,
taken as a whole (a "Material Adverse Effect").
(j) No authorization, approval, consent or order of, or filing with,
any court or governmental body, agency or official is necessary in
connection with the transactions contemplated by this Agreement, except
such as may be required by the NASD or have been obtained and made under
the Act, the Exchange Act, the TIA, state securities or Blue Sky laws or
regulations.
(k) The Company has been duly organized, is validly existing as a
corporation in good standing under the laws of the State of Nevada and has
the requisite power and authority to carry on its business as it is
currently being conducted, to own, lease and operate its properties and to
authorize the offering of the Securities, to execute, deliver and perform
this Agreement and to issue, sell and deliver the Securities, and is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction where the operation, ownership or leasing of
property or the conduct of its business requires such qualification and
where failure to be so qualified or in good standing would have a Material
Adverse Effect. Each of the Subsidiaries of the Company that (i) directly
or indirectly owns or leases any interest in any Hospital (as defined in
the Offering Memorandum) or (ii) is otherwise material to the Company and
the Subsidiaries, taken as a whole (collectively, the "Significant
Subsidiaries"), has been duly organized, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the requisite power and authority to carry on its
business as it is currently being conducted and to own, lease and operate
its properties and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction where
the operation, ownership or leasing of property or the conduct of its
business requires such qualifications and where failure to have such power
and authority or to be so qualified or in good standing would have a
Material Adverse Effect.
(l) Except as otherwise disclosed in the Offering Memorandum, all of
the issued and outstanding shares of capital stock of, or other ownership
interests in, each of the Significant Subsidiaries that are owned directly
or indirectly by the Company, have been duly authorized and validly issued,
and, except as otherwise disclosed in the Offering Memorandum, all of the
shares of capital stock of, or other ownership interests in, each of the
Significant Subsidiaries are owned, directly or through subsidiaries, by
the Company. All such shares of capital stock are fully paid and
nonassessable, and are owned free and clear of any Lien, and, except as
disclosed in a certificate or opinion delivered to the Initial Purchasers,
there are no outstanding subscriptions, rights, warrants, options, calls,
convertible or exchangeable securities, commitments of sale, or Liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, any of the
Subsidiaries.
(m) Neither the Company nor the Significant Subsidiaries is in
violation of its respective charter or bylaws and neither the Company nor
the Subsidiaries is in default in the performance of any obligation, bond,
agreement, debenture, note or any other evidence of indebtedness, or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
- 7 -
which any of them is bound, or to which any of the property or assets of
the Company or any of the Subsidiaries is subject, except as would not
have, singly or in the aggregate, a Material Adverse Effect.
(n) Except as disclosed in the Offering Memorandum, there is no
action, suit, proceeding or investigation before or by any court,
governmental agency or body, arbitration board or tribunal, or governmental
or private accrediting body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries, or any of their
respective assets or properties, which is required to be disclosed in the
Offering Memorandum, or in which there is a reasonable possibility of
adverse decisions which in the aggregate could reasonably be expected to
have a Material Adverse Effect, or which might materially and adversely
affect the Company's or any of its Subsidiaries' performance of its
obligations, as applicable, pursuant to this Agreement (including, without
limitation, the issuance of the Securities), the Operative Documents or the
transactions contemplated hereby and thereby, and to the best of the
Company's knowledge, after due inquiry, no such action, suit, or proceeding
is contemplated or threatened.
Except as disclosed in the Offering Memorandum, neither the Company
nor the Subsidiaries is subject to any judgment, order or decree of any
court, governmental authority or arbitration board or tribunal which has
had or which can reasonably be expected to have, a Material Adverse Effect.
(o) The firms of accountants that have certified or shall certify the
applicable consolidated financial statements and supporting schedules and
the notes thereto of the Company incorporated by reference in the Offering
Memorandum are, to the best of the Company's knowledge, independent public
accountants with respect to the Company and its Subsidiaries, as required
by the Act. The consolidated financial statements, together with related
schedules and notes, set forth or incorporated by reference in the Offering
Memorandum, comply as to form in all material respects with the
requirements of the Act and fairly present the consolidated financial
position of the Company and its Subsidiaries at the respective dates
indicated and the results of their operations and their cash flows for the
respective periods indicated, in accordance with generally accepted
accounting principles in the United States of America ("GAAP") consistently
applied throughout such periods and in accordance with Regulation S-X. The
Company's ratio of earnings to fixed charges included or incorporated by
reference in the Offering Memorandum under the relevant captions
"Prospectus Summary--Summary Financial Information" have been calculated in
compliance with Item 503(d) of the Commission's Regulation S-K. The other
financial and statistical information and data of the Company included or
incorporated by reference in the Offering Memorandum are in all material
respects accurately presented and prepared on a basis consistent with the
books and records of the Company.
(p) Except as contemplated by the Offering Memorandum excluding my
amendments or supplements thereto after the date of this Agreement),
subsequent to the respective dates as of which information is presented in
the Offering Memorandum and up to the Closing Date (i) neither the Company
nor the Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transaction not in the ordinary course of
business, which could reasonably be expected to have a Material Adverse
Effect, (ii) there has been no decision or judgment in the nature of
litigation or arbitration that could reasonably be expected to have a
Material Adverse Effect, (iii) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock and (iv) there has not been any material adverse change, or
any development which could involve a material adverse change, in the
business, financial condition, results of operations or prospects of the
Company and the Subsidiaries, taken as a whole (any of the items set forth
in clauses (i), (ii), (iii) or (iv) above, a "Material Adverse Change").
(q) (i) Except as described in the Offering Memorandum or as could
not reasonably be expected to have a Material Adverse Effect, each of the
Company and the Subsidiaries has all certificates, consents, exemptions,
orders, permits, licenses, authorizations, accreditations or other
approvals or rights (each, an "Authorization") of and from, and has made
all declarations and filings with, all Federal, state, local and other
governmental authorities, all self-regulatory organizations, all
governmental and private accrediting bodies and
- 8 -
all courts and other tribunals, necessary or required to own, lease,
license, and use its properties and assets and to conduct its business in
the manner described in the Offering Memorandum, (ii) all such
Authorizations are valid and in full force and effect, except as could not
reasonably be expected to have, singly or in the aggregate, a Material
Adverse Effect, (iii) the Company and the Subsidiaries are in compliance
with the terms and conditions of all such Authorizations and with the rules
and regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto except as could not reasonably be
expected to have a Material Adverse Effect and (iv) none of the Company or
the Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Authorization.
(r) None of the Company or any agent acting on its behalf has taken
or will take any action that is reasonably likely to cause the issuance or
sale of the Securities to violate Regulation T, U, or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, on the
date hereof.
(s) None of the Company or any of the Significant Subsidiaries is (i)
an "investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(ii) a "holding company" or a "subsidiary company" of a holding company, or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(t) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or the Initial Purchasers' Counsel
shall be deemed to be a representation and warranty by the Company to each
Initial Purchaser as to the matters covered thereby.
(u) The Company has delivered to the Initial Purchasers a true and
correct copy of each of the Operative Documents that have been executed and
delivered prior to the date of this Agreement and each other Operative
Document in the form substantially as it will be executed and delivered on
or prior to the Closing Date, together with all related agreements and all
schedules and exhibits thereto, and there have been no amendments,
alterations, modifications or waivers of any of the provisions of any of
the Operative Documents since their date of execution or from the form in
which it has been delivered to the Initial Purchasers; there exists as of
the date hereof (after giving effect to the transactions contemplated by
the Operative Documents) no event or condition that would constitute a
default or an event of default (in each case as defined in each of the
Operative Documents) under any of the Operative Documents which would
reasonably be expected to result in a Material Adverse Effect.
(v) The Offering Memorandum, as of its date, contains all the
information specified in, and meeting the requirements of, Rule 144A(d)(4)
under the Act.
(w) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning
of Rule 144A under the Act) as any security of the Company that is listed
on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in the United States automated inter-dealer
quotation system.
(x) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company, or any of
its representatives (other than the Initial Purchasers, as to whom the
Company makes no representation) in connection with the offer and sale of
the Securities contemplated hereby, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as the
Securities have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(y) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the TIA.
- 9 -
(z) Neither the Company, nor any of its respective affiliates or any
person acting on its or their behalf (other than the Initial Purchasers, as
to whom the Company makes no representation) has engaged or will engage in
any directed selling efforts within the meaning of Regulation S under the
Act ("Regulation S") with respect to the Securities.
(aa) The Securities offered and sold in reliance of Regulation S have
been and will be offered and sold only in offshore transactions, assuming
the accuracy of the Initial Purchasers' representations and warranties and
agreements set forth in Section 6 hereof.
(bb) The sale of the Securities pursuant to Regulation S is not part
of a plan or scheme to evade the registration provisions of the Act.
(cc) No registration of the Securities under the Act is required for
the sale of the Securities to the Initial Purchasers as contemplated hereby
or for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 6
hereof.
6. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Company:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Securities.
(b) Such Initial Purchaser (A) is not acquiring the Securities with a
view to any distribution thereof or with any present intention of offering
or selling any of the Securities in a transaction that would violate the
Act or the securities laws of any state of the United States or any other
applicable jurisdiction and (B) will be reoffering and reselling the
Securities only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A and (y) in
offshore transactions in reliance upon Regulation S.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act) has been or will be used by such Initial Purchaser or any of
its representatives in connection with the offer and sale of the Securities
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Securities
only from, and will offer to sell the Securities only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to
sell the Securities only to, and will solicit offers to buy the Securities
only from (A) Eligible Purchasers that such Initial Purchaser reasonably
believes are QIBs and (B) Regulation S Purchasers, in each case, that agree
that (x) the Securities purchased by them may be resold, pledged, or
otherwise transferred within the time period referred to under Rule 144(k)
(taking into account the provisions of Rule 144(d) under the Act, if
applicable) under the Act, as in effect on the date of the transfer of such
Securities, only (I) to the Company or any of its subsidiaries, (II) to a
person whom the seller reasonably believes is a QIB purchasing for its own
account or for the account of a QIB in a transaction meeting the
requirements of Rule 144A under the Act, (III) in an offshore transaction
(as defined in Rule 902 under the Act) meeting the requirements of Rule 903
and Rule 904 of the Act, (IV) in a transaction meeting the requirements of
Rule 144 under the Act, (V) in accordance with another exemption from the
registration requirements of the Act (and based upon an opinion of counsel
acceptable to the Company) or (VI) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities
laws of any
- 10 -
state of the United States or any other applicable jurisdiction and (y)
they will deliver to each person to whom such Securities or an interest
therein is transferred a notice substantially to the effect of the
foregoing.
(e) Such Initial Purchaser and its affiliates or any person acting on
its behalf have not engaged and will not engage in any directed selling
efforts within the meaning of Regulation S with respect to the Securities.
(f) The Securities offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered
and sold only in offshore transactions.
(g) The sale of the Securities offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan
or scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser further represents and agrees that (i) it
has not offered or sold and will not offer or sell any Securities to
persons in the United Kingdom prior to the expiration of the period of six
months from the issue date of the Securities, except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
business or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning
of the Public Offers of Securities Regulations 1995, (ii) it has complied
and will comply with all applicable provisions of the Financial Services
Xxx 0000 with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom and (iii) it has only
issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issuance of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act of 1986 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom the document may otherwise lawfully be
issued or passed on.
(i) Such Initial Purchaser agrees that it will not offer, sell or
deliver any of the Securities in any jurisdiction outside the United States
except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Securities in
such jurisdictions. Such Initial Purchaser understands that no action has
been taken to permit a public offering in any jurisdiction outside the
United States where action would be required for such purpose.
Each Initial Purchaser acknowledges that the Company, for purposes of
the opinions to be delivered to each Initial Purchaser pursuant to Section 8
hereof, counsel to the Company and counsel to the Initial Purchasers will
rely upon the accuracy and truth of the foregoing representations and each
Initial Purchaser hereby consents to such reliance.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i) each of the
Initial Purchasers and their respective affiliates, (ii) each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any of the Initial Purchasers or any of their respective
affiliates (any of the persons referred to in this clause (ii) being hereinafter
referred to as a "Controlling Person"), and (iii) each of the respective
officers, directors, partners, employees, representatives and agents of any of
the Initial Purchasers or any Controlling Person, and each of their respective
officers, directors, partners, employees, representatives and agents (any person
referred to in clause (i), (ii) or (iii) of this Section 7(a) may hereinafter be
referred to as an "Indemnified Person") to the fullest extent lawful, from and
against any and all losses, claims, damages, judgments, actions, costs,
assessments, expenses and other liabilities (collectively, "Liabilities"),
including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any foreign, Federal, state or local
authority, regulatory body, administrative agency, court or other governmental
or quasi-governmental body, commenced or threatened, including the reasonable
fees and expenses of counsel to any
- 11 -
Indemnified Person, to the extent such Liabilities are directly or indirectly
caused by, related to, based upon or arising out of, or in connection with, any
untrue statement or alleged untrue statement of a material fact contained in the
Offering Memorandum (or any supplement or amendment thereto) or any Rule 144A
Information provided by the Company to any holder or prospective purchaser of
Securities pursuant to Section 4(i), or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such Liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Initial Purchasers furnished in writing to the Company by
or on behalf of an Initial Purchaser through DLJ expressly for use in the
Offering Memorandum (or any amendment or supplement thereto) or any Rule 144A
Information provided by the Company to any holder or prospective purchaser of
Securities pursuant to Section 4(g). The foregoing indemnity shall be in
addition to any liability that the Company might otherwise have to any of the
Initial Purchasers and such other Indemnified Persons. The Company shall notify
you promptly after becoming aware of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves the
Company or an Indemnified Person.
(b) In case any action or proceeding (for all purposes of this
Section 7, including any governmental or quasi-governmental investigation) shall
be brought or asserted against any of the Indemnified Persons with respect to
which indemnity under this Section 7 may be sought against the Company, such
Indemnified Person promptly shall notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person and payment of all reasonable fees and
expenses; PROVIDED, that the delay or failure to give such notice shall not
relieve the Company from any liability that it may have on account of the
indemnity under this Section 7, except to the extent that such delay or omission
materially adversely affects the ability of the Company to defend or assume the
defense of such action or proceeding. Upon receiving such notice, the Company
shall be entitled to participate in any such action or proceeding and/or to
assume, at its sole expense, the defense thereof, with counsel reasonably
satisfactory to such Indemnified Person (who shall not, except with the consent
of the Indemnified Person to be represented, be counsel to the Company or any of
the Subsidiaries) and, after written notice from the Company to such Indemnified
Person of its election so to assume the defense thereof promptly after receipt
of the notice from the Indemnified Person of such action or proceeding, the
Company shall not be liable to such Indemnified Person hereunder for legal
expenses of other counsel subsequently incurred by such Indemnified Person in
connection with the defense thereof, other than reasonable costs of
investigation, unless (i) the Company agrees in writing to pay such fees and
expenses, or (ii) the Company fails promptly to assume such defense or fails to
employ counsel reasonably satisfactory to such Indemnified Person, or (iii) the
named parties to any such action or proceeding (including any impleaded parties)
include both such Indemnified Person and the Company or an affiliate of the
Company, and that Indemnified Person shall have been advised in writing by
counsel, with a copy of such writing to the Company, that either (x) there may
be one or more legal defenses available to such Indemnified Person that are
different from or additional to those available to the Company or such affiliate
or (y) a conflict may exist between such Indemnified Person and the Company or
such affiliate. In the event of any of clause (i), (ii) and (iii) of the
immediately preceding sentence, the Company shall not have the right to assume
the defense thereof on behalf of the Indemnified Person and such Indemnified
Person shall have the right to employ its own counsel (who shall be reasonably
acceptable to the Company and shall not, except with the Company's consent, be
counsel to the Company) in any such action and the reasonable fees and expenses
of such counsel shall be paid, as incurred, by the Company, subject to repayment
to the Company if it is ultimately determined that an Indemnified Person is not
entitled to indemnification hereunder, it being understood, however, that the
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all of the Indemnified Persons, which firm shall be
designated in writing by DLJ. The Company shall not be liable for any settlement
of any such action or proceeding effected without the Company's written consent,
which consent may not be unreasonably withheld, but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Indemnified Person from and against any loss or liability incurred in such
settlement. The Company shall not, without the prior written consent of each
Indemnified Person, which consent shall not be unreasonably withheld settle,
compromise or consent to the entry of any judgment in or otherwise seek to
- 12 -
terminate any pending or threatened action, claim, suit, investigation or other
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification or contribution could have been sought hereunder by
such Indemnified Person, unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(c) Each of the Initial Purchasers agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers, and any
person controlling (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company, to the same extent as the foregoing indemnity
from the Company to each of the Indemnified Persons, but only with respect to
claims and actions based on information relating to such Initial Purchaser
furnished in writing by or on behalf of such Initial Purchaser through DLJ
expressly for use in the Offering Memorandum or any Rule 144A Information
provided by the Company to any holder or prospective purchaser of Securities
pursuant to Section 4(g), as applicable. In case any action shall be brought
against the Company, any of its directors, any such officer, or any such
controlling person based on the Offering Memorandum or any Rule 144A Information
provided by the Company to any holder or prospective purchaser of Securities
pursuant to Section 4(g) in respect of which indemnity is sought against any
Initial Purchaser pursuant to the foregoing sentence, the Initial Purchaser
shall have the rights and duties given to the Company (except that if an Initial
Purchaser shall have assumed the defense thereof, the Company shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Company), and the Company, its directors, any such officers, and
each such controlling person shall have the rights and duties given to the
Indemnified Person by Section 7(b) above.
(d) If the indemnification provided for in this Section 7 is finally
determined by a court of competent jurisdiction to be unavailable to an
Indemnified Person in respect of any Liabilities referred to herein, then the
Company, in lieu of indemnifying such Indemnified Person, shall contribute to
the amount paid or payable by such Indemnified Person as a result of such
Liabilities: (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Indemnified Person on
the other hand from the offering of the Securities, or (ii) if the allocation
provided by clause (i), above, is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i), above, but also the relative fault of the Company and the
Indemnified Person in connection with the actions, statements or omissions that
resulted in such Liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and any of the Initial Purchasers (and its related Indemnified Persons), on the
other hand, shall be deemed to be in the same proportion as the total proceeds
from the offering (net of Initial Purchaser's discounts and commissions but
before deducting expenses) received by the Company bear to the total Initial
Purchaser's discounts and commissions received by such Initial Purchaser, in
each case as set forth in the Offering Memorandum. The relative fault of the
Company and the Initial Purchaser shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact related to
information supplied by the Company or the Initial Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The indemnity and contribution obligations
of the Company set forth herein shall be in addition to any liability or
obligation the Company may otherwise have to any Indemnified Person.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by PRO
RATA allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the
Liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any reasonable legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Initial Purchasers (or any of their
related Indemnified Persons referred to in Section 7 above) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total underwriting discount applicable to the Securities purchased by such
underwriter exceeds the amount of any damages or liabilities which such Initial
- 13 -
Purchaser (and its related Indemnified Persons referred to in Section 7 above)
has otherwise been required to pay or incur by reason of such untrue or alleged
untrue statement or omission or alleged omission or other indemnified action or
proceeding. Notwithstanding anything to the contrary contained herein, no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Initial Purchasers' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective aggregate principal amount of Securities purchased by each of the
underwriters hereunder and not joint.
8. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The respective
obligations of the several Initial Purchasers to purchase any Securities under
this Agreement are subject to the satisfaction or waiver by the several
underwriters of each of the following conditions on the Closing Date:
(a) All the representations and warranties of the Company contained
or incorporated by reference in this Agreement shall be true and correct on
the Closing Date after giving effect to the transactions contemplated by
the Operative Documents, with the same force and effect as if made on and
as of the Closing Date, unless another date is specified therein. The
Company and its Subsidiaries shall have performed or complied with all of
their obligations and agreements herein contained and required to be
performed or complied with by them at or prior to the Closing Date.
(b) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency, body or official which would, as of the Closing Date, prevent the
issuance of the Securities; and no injunction, restraining order or order
of any nature by any Federal or state court shall have been issued as of
the Closing Date which would prevent the issuance of the Securities.
Subsequent to the execution and delivery of this Agreement and prior to the
Closing Date, there shall not have been any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) of the Act.
(c) (i) Since the earlier of the date hereof or the dates as of which
information is given in the Offering Memorandum, there shall not have been
any Material Adverse Change, (ii) since the date of the latest balance
sheet included in the Offering Memorandum, there shall not have been any
material adverse change, or development involving a prospective material
adverse change, in the capital stock or debt, of the Company and the
Subsidiaries, taken as a whole, and (iii) none of the Company or any of the
Subsidiaries shall have any liability or obligation, direct or contingent,
that is material to the Company and the Subsidiaries, taken as a whole, and
which is not disclosed in the Offering Memorandum as of the date hereof.
(d) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by an executive officer
and a financial officer of the Company satisfactory to you confirming, as
of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and
(j) of this Section 8.
(e) On the Closing Date, you shall have received:
(1) an opinion (reasonably satisfactory to you and your
counsel), dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel for the Company ("Skadden, Arps"), to the effect
that:
(i) each document filed pursuant to the Exchange Act and
incorporated by reference in the Offering Memorandum, at the time
it was filed or last amended, complied as to form in all material
respects to the applicable requirements of the Exchange Act
(except for financial statements, the notes thereto and related
schedules and other financial
- 14 -
data included or incorporated by reference therein or omitted
therefrom, as to which no opinion need be expressed);
(ii) the Securities have been duly authorized and executed
by the Company and, when authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this
Agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their
respective terms and entitled to the benefits of the Indenture,
except to the extent that the enforceability thereof may be
limited by (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws in effect as of
the date of the opinion or thereafter relating to or affecting
creditors' rights generally and (b) general principles of equity
(regardless of whether enforcement is sought in a proceeding at
law or in equity) and except that such counsel need express no
opinion as to the enforceability or effect of the waiver of
rights under any usury laws pursuant to the Indenture;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, is a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except to the extent that the
enforceability thereof may be limited by (a) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws in effect as of the date of the opinion or
thereafter relating to or affecting creditors' rights generally
and (b) general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and
except that such counsel need express no opinion as to the
enforceability or effect of the waiver of rights under any usury
laws pursuant to the Indenture;
(iv) the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Offering Memorandum;
(v) the Company is a corporation existing and in good
standing under the laws of its jurisdiction of organization;
(vi) the Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(vii) no consent, approval, authorization or other order of,
or filing with, any Federal or New York executive, legislative,
judicial, administrative or regulatory body, including, without
limitation, the Commission (each, a "Governmental Authority"), is
legally required under any laws, rules and regulations of the
State of New York and the United States of America that, in the
experience of such counsel, are normally applicable to
transactions of the type contemplated by this Agreement and the
Indenture (provided that no opinion need be expressed as to the
"blue sky" or state securities laws of any jurisdiction)
(collectively, the "Applicable Laws") for the issuance or sale to
the Initial Purchasers of the Securities as contemplated by this
Agreement;
(viii) the execution and delivery by the Company of this
Agreement and the Indenture and the issuance and sale of the
Securities to you as contemplated thereby and the performance of
its obligations pursuant to this Agreement and the Indenture (a)
will not conflict with or result in a breach of violation of any
of the terms or provisions of, or constitute a default under the
charter or bylaws of the Company; and (b) will not conflict with
or violate any Applicable Law or any order or decree of any
Governmental Authorities
- 15 -
by which the Company or any of its Subsidiaries is bound, the
existence of which is actually known to such counsel or has been
specifically disclosed to such counsel in writing by the Company;
(ix) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(x) the Indenture conforms in all material respects with
the requirements of the TIA, and the rules and regulations of the
Commission applicable to an indenture that is qualified
thereunder;
(xi) Assuming (i) the accuracy of the representations and
warranties of the Company set forth in Sections 5(x), 5(z), 5(aa)
and 5(bb) of this Agreement, (ii) the due performance by the
Company of the covenants and agreements set forth in Section 4 of
this Agreement, (iii) the Initial Purchasers' compliance with the
offering and transfer procedures and the restrictions described
in the Offering Memorandum, (iv) the accuracy of your
representations and warranties set forth in Section 6 of this
Agreement and (v) that purchasers to whom the Initial Purchasers
initially resell the Securities receive a copy of the Offering
Memorandum prior to such sale, the offer, sale and delivery of
the Securities to the Initial Purchasers in the manner
contemplated by this Agreement and the Offering Memorandum and
the initial resale of the Securities by the Initial Purchasers in
the manner contemplated in the Offering Memorandum and this
Agreement, do not require registration under the Securities Act
of 1933, as amended, and the Indenture does not require
qualification under the TIA, it being understood that such
counsel expresses no opinion as to any subsequent resale of any
Securities.
(2) In giving their opinion required by subsection (e)(l) of
this Section 8, such counsel may state that such opinions are limited
to matters governed by the Federal laws of the United States of
America and the laws of the State of New York.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company, your representatives and your counsel at which the
contents of the Offering Memorandum and related matters were discussed
and, although such counsel is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Offering Memorandum, on the basis of the
foregoing, no fact has come to the attention of such counsel that
leads it to believe that, as of the date of the Offering Memorandum or
as of the Closing Date, the Offering Memorandum contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that such counsel need not express any
opinion or belief with respect to the financial statements, schedules
and other financial data included or incorporated by reference in or
excluded from the Offering Memorandum.
In rendering the foregoing opinions, Skadden, Arps may rely as to
matters of Nevada law on the opinion of Xxxxxxxx and Wedge, Nevada
counsel to the Company, or such other counsel as is reasonably
satisfactory to the Initial Purchasers' Counsel.
- 16 -
(3) an opinion (satisfactory to you and Initial Purchasers'
Counsel), dated the Closing Date, of Xxxxxxx X. Xxxxxxxx, Esq.,
Executive Vice President and General Counsel of the Company, or
Xxxxxxx X. Silver, Vice President and Associate General Counsel of the
Company, to the effect that:
(i) the descriptions in the Offering Memorandum of
statutes, legal and governmental proceedings, contracts and other
documents and regulatory matters, including, without limitation,
those described in the Offering Memorandum under the captions
"Risk Factors--Limits on Payments," "--Extensive Regulation,"
"--Healthcare Reform Legislation" and in the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1999 (the
"Form 10-K") under the captions "Medicare, Medicaid and Other
Revenues" and "Healthcare Reform, Regulation and Licensing" and
in the Company's Form 10-K and Quarterly Report on Form 10-Q for
the quarter ended February 29, 2000 under the caption "Legal
Proceedings" insofar as such statements constitute summaries of
legal matters, documents or proceedings referred to therein are
accurate in all material respects and such counsel does not know
of any contracts or documents of a character required to be
described in the Offering Memorandum and not described therein;
it being understood that such counsel need express no opinion as
to the financial statements, notes or schedules or other
financial data included or incorporated by reference therein;
(ii) each of the Company and its Significant Subsidiaries
has such Authorizations from all regulatory or governmental
officials, bodies and tribunals as are necessary to own, lease
and operate its respective properties and to conduct its business
in the manner described in the Offering Memorandum, except as
could not reasonably be expected to have, singly or in the
aggregate, a material adverse effect on the business, financial
condition or results of operations of the Company and its
Subsidiaries, taken as a whole;
(iii) to the best of such counsel's knowledge, there is no
current, pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries or to
which any of their respective property is subject of a character
required to be disclosed in the Offering Memorandum which is not
adequately disclosed in the Offering Memorandum;
(iv) except as otherwise disclosed in the Offering
Memorandum, all of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Significant
Subsidiary of the Company that is owned directly or indirectly by
the Company have been duly and validly authorized and issued,
and, except as otherwise described in the Offering Memorandum,
the shares of capital stock of, or other ownership interests in,
each of its Significant Subsidiaries are owned of record,
directly or through subsidiaries, by the Company, are fully paid
and nonassessable, and to the best knowledge of such counsel are
owned free and clear of any material, consensual Lien;
(v) the Company and each of its Significant Subsidiaries is
a duly organized corporation, has the requisite corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum,
and, to the extent each is a party thereto, to execute, deliver
and perform its obligations pursuant to the Indenture, this
Agreement and the Registration Rights Agreement, and is duly
qualified as a foreign corporation and in good standing in each
jurisdiction where the ownership, leasing or operation of
property or the conduct of its business requires such
qualification, except where the failure so to be qualified could
not reasonably be expected to have, singly or in the aggregate, a
Material Adverse Effect; and
- 17 -
(vi) the execution and delivery by the Company of this
Agreement, the Indenture and the Registration Rights Agreement
and the issuance and sale of the Securities to you as
contemplated thereby and the performance of its obligations
pursuant to this Agreement, the Indenture and the Registration
Rights Agreement will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default (with the passage of time or otherwise) under, or result
in the imposition of a Lien on any properties of the Company or
any of its Subsidiaries or an acceleration of indebtedness
pursuant to any of the agreements listed on a schedule attached
to such counsel's opinion, where, in any such instance, such
breach, default, Lien, acceleration of indebtedness or conflict
could have, singly or in the aggregate, a Material Adverse
Effect.
(4) In giving their opinion required by subsection (e)(3)
of this Section 8, such counsel shall state that no fact has come to
the attention of such counsel that leads it to believe that the
descriptions of statutes, legal and governmental proceedings,
contracts and other documents and regulatory matters described in the
Offering Memorandum under the captions set forth in subsection
(e)(3)(i) of this Section 8 contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(5) an opinion (satisfactory to you and Initial Purchasers'
Counsel), dated the Closing Date, of Xxxxxxxx and Wedge, special
Nevada counsel to the Company, to the effect that:
(i) the Company has the corporate power and authority to
execute, deliver and perform this Agreement and the Company has
the corporate power and authority to authorize, issue and sell
the Securities as contemplated by this Agreement;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company, and the Securities and the Indenture
have been duly authorized, executed and delivered by the Company;
(iii) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Nevada and has the requisite corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum, and to execute and
deliver, and perform its obligations pursuant to, the Indenture,
the Securities and this Agreement;
(iv) no consent, approval, authorization, or order of any
Nevada governmental agency or body is required, for the
consummation by the Company of the transactions contemplated by
this Agreement in connection with the issuance and sale of the
Securities;
(v) the execution and delivery by the Company of this
Agreement and the Indenture, the issuance and sale of the
Securities to you as contemplated by this Agreement and the
performance of its obligations pursuant to this Agreement, the
Securities and the Indenture will not conflict with or result in
a breach or violation of any of the terms or provision of, or
constitute a default under, (a) any of the charter or bylaws of
the Company, or (b) any existing applicable statute, rule or
regulation or any order of any Nevada court or governmental
agency or body having jurisdiction over the Company or any of its
properties; provided that the opinion expressed in clause (b) is
limited to those statutes, rules or regulations which, in the
experience of such counsel, are normally applicable to
transactions of the type contemplated by this Agreement in
connection with the issuance and sale of the Securities; and
- 18 -
(vi) in any action or proceeding arising out of or relating
to this Agreement or the Indenture in any court of the State of
Nevada or in any federal court sitting in the state of Nevada,
such court would recognize and give effect to the provisions of
Section 11 of this Agreement and Section 9.10 of the Indenture
wherein the parties thereto agreed, to the extent therein stated,
that each such document shall be governed by and construed in
accordance with the internal laws of the State of New York.
(f) You shall have received an opinion, dated the Closing Date, of
Xxxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, in form and
substance reasonably satisfactory to you.
(g) You shall have received complete sets of all closing documents,
including without limitation all opinions, required to be delivered under
any of the other Operative Documents.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date, in the latter case constituting an
affirmation of the statements set forth in the earlier letters, in form and
substance satisfactory to you, from KPMG LLP, independent public
accountants to the Company, with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Offering Memorandum as you shall reasonably require.
(i) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement and the Offering
Memorandum and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory to
Xxxxxxxx & Xxxxxxxx.
(j) There shall have been no amendments, alterations, modifications,
or waivers of any provisions of the Operative Documents since the date of
the execution and delivery thereof by the parties thereto other than those
which are disclosed in the Offering Memorandum or any supplement thereto
or which under the Act are not required to be disclosed in the Offering
Memorandum or any supplement thereto and which have been disclosed to
the Initial Purchasers prior to the date hereof.
(k) On or before the Closing Date, the Initial Purchasers and
Xxxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, shall have
received such further documents, opinions, certificates and schedules or
instruments relating to the business, corporate, legal and financial
affairs of the Company and the Subsidiaries as they shall have reasonably
requested prior to the date of this Agreement.
9. EFFECTIVE DATE OF AGREEMENT, DEFAULT AND TERMINATION. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by notice to the Company if any of the following has occurred: (i)
subsequent to the date of this Agreement, any Material Adverse Change which, in
your judgment, impairs the investment quality of the Securities, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or material adverse change in the financial markets of the
United States or elsewhere, or any other substantial national or international
calamity or emergency if the effect of such outbreak, escalation, calamity,
crisis or emergency would, in your judgment make it impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
(iii) any suspension or limitation of trading generally in securities, or in any
securities of the Company on the New York or American Stock Exchanges, or the
National Association of Securities Dealers Automated Quotation National Market,
or the over-the-counter markets or any setting of minimum prices for trading on
such exchanges or markets, (iv) any declaration of a general banking moratorium
by either Federal or New York authorities, (v) the taking of any action by any
Federal or state government or agency in respect of its monetary or fiscal
affairs that in your judgment has a material adverse effect on the financial
markets in the United States, and would, in your judgment, make it impracticable
or inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, (vi) any securities of the Company or any of its Subsidiaries
shall
- 19 -
have been downgraded or placed on any "watch list" for possible downgrading or
reviewed for a possible change that does not indicate the direction of the
possible change by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) of the Act, or (vii) the
enactment, publication, decree or other promulgation of any Federal or state
statute, regulation, or rule or order of any court or other governmental
authority which in your judgment could reasonably be expected to have a Material
Adverse Effect.
If this Agreement shall be terminated by you pursuant to clause (i), (vi)
or, in the case of a statute, regulation, rule or order specifically addressing
the Company, and not affecting the general hospital industry generally, (vii) of
the second paragraph of this Section 9 or because of the failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, the Company agrees to reimburse you for all
reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by you. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 4(d) hereof. If this Agreement is terminated pursuant
to this Section 9, such termination shall be without liability of any Initial
Purchaser to the Company or any of its Subsidiaries.
If on the Closing Date any Initial Purchaser shall fail or refuse to
purchase the securities which it has agreed to purchase hereunder on such date,
and the aggregate principal amount of such Securities that such defaulting
Initial Purchaser or Initial Purchasers, as the case may be, agreed but failed
or refused to purchase does not exceed 20% of the total principal amount of such
Securities to be purchased on such date by all Initial Purchasers, each
non-defaulting Initial Purchaser shall be obligated severally, in the proportion
which the amount of Securities set forth opposite its name in Schedule I and
Schedule II, respectively, hereto bears to the aggregate principal amount of
Securities which all the non-defaulting Initial Purchasers, as the case may be,
have agreed to purchase, or in such other proportion as you (at your option) may
specify, to purchase the Securities that such defaulting Initial Purchaser or
Initial Purchasers, as the case may be, agreed but failed or refused to purchase
on such date; PROVIDED that in no event shall the aggregate principal amount of
Securities that any Initial Purchaser has agreed to purchase pursuant to Section
2 hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Initial Purchaser. If, on the Closing Date any of the Initial Purchasers
shall fail or refuse to purchase the Securities, as the case may be, and the
total principal amount of Securities with respect to which such default occurs
exceeds 20% of the total amount of Securities to be purchased on such date by
all Initial Purchasers and arrangements satisfactory to you and the Company for
the purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchaser and the Company, except as otherwise provided
in this Section 9. In any such case that does not result in termination of this
Agreement, either the non-defaulting Initial Purchaser or the Company may
postpone the Closing Date for not longer than seven (7) days, in order that the
required changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Initial Purchaser from liability in respect of any default
of any such Initial Purchaser under this Agreement.
10. NOTICES. Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (a) if to the Company, to it at 0000 Xxxxx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer,
with copies to Attention: General Counsel and to Skadden, Arps, Slate, Xxxxxxx &
Xxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxxx X. Xxxxxxx and (b) if to any Initial Purchaser, to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Department, and, in each case, with a copy
to Xxxxxxxx & Xxxxxxxx, 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, or in any case to such other address as the person
to be notified may have required in writing.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS
TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED
IN
- 20 -
THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED
TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES
ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
12. SEVERABILITY. Any determination that any provision of this Agreement
may be, or is, unenforceable shall not affect the enforceability of the
remainder of this Agreement.
13. SUCCESSORS. Except as otherwise provided, this Agreement has been and
is made solely for the benefit of and shall be binding upon the Company, the
Initial Purchasers, any Indemnified Person referred to herein and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include a
purchaser of any of the Securities from any of the Initial Purchasers merely
because of such purchase.
14. CERTAIN DEFINITIONS. For purposes of this Agreement, (a) "business
day" means any day on which the NYSE is open for trading and (b) "subsidiary"
has the meaning set forth in Rule 405 under the Act.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in one or more counterparts, the executed
counterparts shall each be deemed to be an original, not all such counterparts
shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. SURVIVAL. The indemnities and contribution provisions and the other
agreements, representations and warranties of the Company, its officers and
directors and of the Initial Purchasers set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Securities, regardless of (i) any investigation,
or statement as to the results thereof, made by or on behalf of any of the
Initial Purchasers or by or on behalf of the Company, the officers or directors
of the Company or any controlling person of the Company, (ii) acceptance of the
Securities and payment for them hereunder and (iii) termination of this
Agreement.
- 21 -
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
XXXXX HEALTHCARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Corporate Officer and
Chief Financial Officer
The foregoing Purchase Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx Xxxxxx
--------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPOATED
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
- 22 -
SCHEDULE I
PRINCIPAL PERCENTAGE
INITIAL PURCHASER AMOUNT OF TOTAL
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ................... $140,000,000 35%
X.X. Xxxxxx Securities Inc............................................. $140,000,000 35%
Banc of America Securities LLC......................................... $60,000,000 15%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..................... $60,000,000 15%
------------ ------------
Total................................................ $400,000,000 100.0%
============ ============
I-1
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
II-1
