EXHIBIT 4.2
Everest Healthcare Services Corporation
9-3/4% $100,000,000
Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
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April 30, 1998
BT Alex. ▇▇▇▇▇ Incorporated
Bankers Trust Plaza
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Everest Healthcare Services Corporation, a Delaware corporation (the
"Company"), and its subsidiaries which have signed this Agreement (the
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"Subsidiary Guarantors," and together with the Company, the "Issuers"), hereby
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confirm their agreement with you (the "Initial Purchaser"), as set forth below.
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1. The Securities. Subject to the terms and conditions herein
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contained, the Company proposes to issue and sell to the Initial Purchaser
$100,000,000 aggregate principal amount of its []% Senior Subordinated Notes,
Series A due 2008 (the "Notes"). The Notes are to be issued under an indenture
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(the "Indenture") to be dated as of May 5, 1998 by and between the Company, the
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Subsidiary Guarantors and American National Bank and Trust Company of Chicago,
as Trustee (the "Trustee"). The Notes will be guaranteed on a senior
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subordinated basis by the Subsidiary Guarantors, pursuant to their guarantee
(the "Guarantees"). The Notes and the Guarantees are hereinafter collectively
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referred to as the "Securities." Capitalized terms used but not defined herein
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shall have the meanings given to such terms in the Indenture. The Notes will be
offered and sold to the Initial Purchaser without being registered under the
Securities Act of 1933, as amended (the "Act"), in reliance on exemptions
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therefrom.
In connection with the sale of the Notes, the Issuers have prepared a
preliminary offering memorandum dated April 20, 1998 (the "Preliminary
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Memorandum") and a final offering memorandum dated the date hereof (the "Final
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Memorandum"; the Preliminary Memorandum and the Final Memorandum each herein
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being referred to as a "Memorandum"), each setting forth or including
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descriptions of the terms of the Notes, the terms of the Offering
(as defined below), the transactions contemplated thereby and hereby (the
"Transactions"), the Issuers and any material developments relating to the
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Issuers and their Subsidiaries as such term is defined in Section 1-02(x) of
Regulation S-X promulgated under the Act (a "Subsidiary") occurring after the
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date of the most recent historical financial statements included therein.
The Issuers understand that the Initial Purchaser proposes to make an
offering of the Notes (the "Offering") only on the terms and in the manner set
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forth in the Final Memorandum and Section 8 hereof as soon as the Initial
Purchaser deems advisable after this Agreement has been executed and delivered,
to persons in the United States whom the Initial Purchaser reasonably believes
to be qualified institutional buyers ("Qualified Institutional Buyers" or
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"QIBs") as defined in Rule 144A under the Act, as such rule may be amended from
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time to time ("Rule 144A"), in transactions under Rule 144A; to a limited number
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of other institutional "accredited investors" ("Accredited Investors") as
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defined in Rule 501(a)(1), (2), (3) and (7) under Regulation D of the Act in
private sales exempt from registration under the Act; and outside the United
States to certain persons in reliance on Regulation S under the Act.
The Initial Purchaser and any direct and indirect transferees of the
Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration Rights
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Agreement"), to be dated the Closing Date (as defined in Section 3 below),
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pursuant to which the Issuers will agree, among other things, to file a
registration statement (the "Registration Statement") with the Securities and
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Exchange Commission (the "Commission") registering the Notes or the Exchange
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Notes (as defined in the Registration Rights Agreement) under the Act.
2. Representations and Warranties of the Issuers. Each of the
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Issuers, jointly and severally, represents and warrants to, and agrees with, the
Initial Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof nor the
Final Memorandum nor any amendment or supplement thereto as of the date thereof
and at all times subsequent thereto up to the Closing Date contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact 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 set forth in this Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information furnished to
the Company in writing by the Initial Purchaser expressly for use in the
Preliminary Memorandum, the
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Final Memorandum or any amendment or supplement thereto. Each of the Preliminary
Memorandum and the Final Memorandum, as of its date, contains all the
information specified in, and meeting the requirements of, Rule 144A(d)(4) under
the Act.
(b) As of the Closing Date and after giving effect to the
Transactions, the Company will have the authorized, issued and outstanding
capitalization set forth in the Final Memorandum; as of the date hereof and upon
consummation of the Transactions, only wholly-owned Subsidiaries of the Company
will be the Subsidiary Guarantors; except as set forth in the Final Memorandum
and except for rights of first refusal and other approval rights in the non-
wholly-owned Subsidiaries, all of the outstanding shares of capital stock of the
Company and its Subsidiaries have been, and as of the Closing Date will be, duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights; except as set forth in
the Final Memorandum, all of the outstanding shares of capital stock of the
Company and its Subsidiaries held by the Company or its Subsidiaries will be
free and clear of all liens, encumbrances, equities and claims or restrictions
on transferability (other than those imposed by the Act and the securities or
"Blue Sky" laws of certain jurisdictions) or voting. Except as set forth in the
Final Memorandum and except for certain put arrangements which directly or
indirectly inure to the benefit of minority interest holders in The
Extracorporeal Alliance, L.L.C., Saint ▇▇▇▇▇▇▇▇ Mercy Dialysis Centers, L.L.C.,
Tri-State Perfusion, L.L.C. and Perfusion Resource Association, L.L.C., there
are no outstanding (i) options, warrants or other rights to purchase, (ii)
agreements or other obligations to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital stock of or
ownership interests in the Company or its Subsidiaries. The Company owns,
directly or indirectly, all of the issued and outstanding capital stock of its
Subsidiaries purported to be owned by it in the Memorandum. Except for its
Subsidiaries, the Company does not own, directly or indirectly, any shares of
capital stock or any other equity or long-term debt securities or have any
equity interest in any firm, partnership, joint venture or other entity other
than those purported to be owned by it in the Memorandum.
(c) Each of the Issuers is duly incorporated (or in the case of a
limited partnership or limited liability company, duly organized), validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation (or formation) and has all requisite corporate (or partnership or
limited liability company) power and authority to own its properties and conduct
its business as now conducted and as described in the Final Memorandum; each of
the Issuers is duly qualified to do business as a foreign corporation (or
foreign
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limited partnership or limited liability company) in good standing in all other
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a material adverse
effect on the general affairs, management, business, condition (financial or
otherwise), prospects or results of operations of the Company and its
Subsidiaries, taken as a whole (any such event, a "Material Adverse Effect").
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(d) Each of the Issuers has all requisite corporate (or partnership
or limited liability company) power and authority to execute, deliver and
perform each of its obligations under the Notes , the Exchange Notes and the
Private Exchange Notes (each as defined in the Registration Rights Agreement)
and the Guarantees thereof. The Securities, when issued, will be in the form
contemplated by the Indenture. The Notes, the Exchange Notes, the Private
Exchange Notes and the Guarantees thereof have each been duly and validly
authorized by the Issuers and, when executed by the Issuers and authenticated by
the Trustee in accordance with the provisions of the Indenture and, in the case
of the Notes, when delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement, will constitute valid and legally
binding obligations of the Issuers entitled to the benefits of the Indenture,
and enforceable against the Issuers, in accordance with their terms, except that
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a court of
equity or law).
(e) Each of the Issuers has all requisite corporate (or partnership
or limited liability company) power and authority to execute, deliver and
perform its obligations under the Indenture. The Indenture meets the
requirements for qualification under the Trust Indenture Act of 1939, as amended
(the "TIA"). The Indenture has been duly and validly authorized by the Issuers
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and, when executed and delivered by the Issuers, and assuming the due
authorization, execution and delivery by the Trustee, will constitute a valid
and legally binding agreement of the Issuers, enforceable against the Issuers in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforcement is considered in
a court of equity or law).
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(f) Each of the Issuers has all requisite corporate (or partnership
or limited liability company) power and authority to execute, deliver and
perform its obligations under the Registration Rights Agreement. The
Registration Rights Agreement has been duly and validly authorized by the
Issuers and, assuming the due authorization, execution and delivery by the
Initial Purchaser, will constitute a valid and legally binding agreement of the
Issuers, enforceable against the Issuers in accordance with its terms, except
that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a court of
equity or law) and (B) any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy considerations.
(g) Each of the Issuers has all requisite corporate (or partnership
or limited liability company) power and authority to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. This Agreement and the consummation by the Issuers of the
Transactions have been duly and validly authorized by the Issuers. This
Agreement has been duly executed and delivered by the Issuers and constitutes a
valid and legally binding agreement of the Issuers, enforceable against the
Issuers in accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a court of equity or law) and any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(h) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the issuance and
sale by the Issuers of the Securities to the Initial Purchaser or the
consummation by the Issuers of the Transactions, except such as (i) have been
obtained, (ii) may be required under state securities or "Blue Sky" laws in
connection with the purchase and resale of the Notes by the Initial Purchaser or
(iii) as may be required from the Commission or under state securities or "Blue
Sky" laws in connection with the transactions contemplated by the Registration
Rights Agreement. None of the Issuers is (i) in violation of its certificate or
articles of incorporation or bylaws (or limited partnership agreement or similar
organizational documents), (ii) in breach or violation of any statute, judgment,
decree, order,
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rule or regulation applicable to any of them or any of their respective
properties or assets, except for any such breach or violation which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, or (iii) in breach of or default under (nor has any event
occurred which, with notice or passage of time or both, would constitute a
default under) or in violation of any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or
instrument to which any of them is a party or to which any of them or their
respective properties or assets is subject (collectively, "Contracts"), except
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for any such breach, default, violation or event which would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(i) The execution, delivery and performance by the Issuers of this
Agreement, the Indenture and the Registration Rights Agreement, and the
consummation by the Issuers of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Notes to the
Initial Purchaser) will not conflict with or constitute or result in a breach of
or a default under (or an event which with notice or passage of time or both
would constitute a default under) or violation of any of (i) the terms or
provisions of any Contract, except for any such conflict, breach, violation,
default or event which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (ii) the certificate or articles
of incorporation or bylaws (or limited partnership agreement or similar
organizational documents) of any of the Issuers, or (iii) (assuming compliance
with the registration requirements of the Act with respect to the transactions
contemplated by the Registration Rights Agreement and all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the representations
and warranties of the Initial Purchaser in Section 8 hereof) any statute,
judgment, decree, order, rule or regulation applicable to any of the Issuers or
any of their respective properties or assets, except for any such conflict,
breach or violation which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(j) The audited consolidated financial statements of the Company
included in the Final Memorandum present fairly in all material respects the
consolidated financial position, results of operations and cash flows of the
Company at the dates and for the periods to which they relate and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. The summary and
selected financial and statistical data in the Final Memorandum present fairly
in all material respects
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the information shown therein and have been prepared and compiled on a basis
consistent with the audited financial statements included therein, except as
otherwise stated therein. Ernst & Young, LLP (the "Independent Accountants") is
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an independent public accounting firm within the meaning of the Act and the
rules and regulations promulgated thereunder.
(k) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Final Memorandum
(i) comply as to form in all material respects with the applicable requirements
of Regulation S-X promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (ii) have been prepared in accordance with the
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Commission's rules and guidelines with respect to pro forma financial
statements, and (iii) have been properly computed on the basis described
therein. The assumptions used in the preparation of the pro forma financial
data and other pro forma financial information included in the Final Memorandum
are reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein.
(l) There is not pending any action, suit, proceeding, inquiry or
investigation to which the Company or any of its Subsidiaries is a party, or to
which the property or assets of the Company or any of its Subsidiaries are
subject, before or brought by any court, arbitrator or governmental agency or
body which, if determined adversely to the Company or any of its Subsidiaries,
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Securities to
be sold hereunder or the consummation of the other transactions described in the
Final Memorandum and, to the knowledge of the Issuers, no such proceedings are
threatened.
(m) The Issuers and their Subsidiaries possess and have performed
their respective obligations with respect to all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and
have made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, presently required or necessary to own or lease, as the case
may be, and to operate their respective properties and to carry on their
respective businesses as now or proposed to be conducted as set forth in the
Final Memorandum ("Permits"), except where the failure to obtain such Permits or
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perform such obligations would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. No event has occurred which
allows, or after notice or lapse of time would allow, revocation or termination
of any such Permit or
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results in any other material impairment of the rights of the holder of any such
Permit and none of the Issuers or any of their Subsidiaries has received any
notice of any proceeding relating to revocation or modification of any such
Permit, except in each case as described in the Final Memorandum and except in
each case where such revocation or modification would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(n) Since the date of the most recent financial statements appearing
in the Final Memorandum, except as described therein, (i) none of the Issuers or
their Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, be material to the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Issuers and their Subsidiaries, taken as a whole; (ii) there shall not have been
any material change in the capital stock or long-term indebtedness of the
Issuers or any payment of or declaration to pay any dividends or any other
distribution with respect to any of the Issuer's or the Subsidiary Guarantor's
capital stock other than those payable to the Issuer or Subsidiary Guarantor;
and (iii) there has not been any event or series of events that would reasonably
be expected to have a Material Adverse Effect.
(o) Each of the Issuers and their Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns, except
where the failure to so file such returns would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and has
paid all taxes shown as due thereon; and other than tax deficiencies which any
of the Issuers or their Subsidiaries is contesting in good faith and for which
any of the Issuers or their Subsidiaries has provided adequate reserves, there
is no tax deficiency that has been asserted against any of the Issuers or their
Subsidiaries that would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(p) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Issuers, after due
inquiry, believe to be reliable and accurate.
(q) None of the Issuers, their Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this Agreement
or the sale of the Notes to violate Regulation G, T, U or X of the Board of
Governors of the
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Federal Reserve System, in each case as in effect, or as the same may hereafter
be in effect, on the Closing Date.
(r) Each of the Issuers and their Subsidiaries has good and
marketable title to all real property and good title to all personal property
described in the Final Memorandum as being owned by it and good and marketable
title to all leasehold estates in the real and personal property described in
the Final Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Final Memorandum or to
the extent the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. All leases,
Contracts and agreements to which each of the Issuers and their Subsidiaries is
a party or by which any of them is bound are valid and enforceable against the
Issuers or their Subsidiaries, as the case may be, and are valid and enforceable
against the other party or parties thereto and are in full force and effect with
only such exceptions as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The Issuers and their
Subsidiaries own or possess adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and know-how
material to the conduct of the businesses operated by them as described in the
Final Memorandum, and none of the Issuers or any of their Subsidiaries has
received any notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with respect to any
patents, trademarks, service marks, trade names, copyrights or know-how which,
if such assertion of infringement or conflict were sustained, would reasonably
be expected to have a Material Adverse Effect.
(s) There are no legal or governmental proceedings involving or
affecting any of the Issuers, their Subsidiaries or any of their respective
properties or assets which would be required to be described in a prospectus
pursuant to the Act that are not described in the Final Memorandum, nor are
there any material Contracts or other documents which would be required to be
described in a prospectus pursuant to the Act that are not described in the
Final Memorandum.
(t) Except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (A) each of the Issuers and their
Subsidiaries is in compliance with and not subject to any order or decree under
applicable Environmental Laws (as defined below), (B) each of the Issuers and
their Subsidiaries has made all filings and provided all notices required under
any applicable
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Environmental Law, and is in compliance with all Permits required under any
applicable Environmental Laws and each of them is in full force and effect, (C)
there is no civil, criminal or administrative action, suit, demand, claim,
hearing, notice of violation, investigation, proceeding, notice or demand letter
or request for information pending or, to the knowledge of the Issuers,
threatened against any of the Issuers or their Subsidiaries under any
Environmental Law, (D) no lien, charge, encumbrance or restriction has been
recorded under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by any of the Issuers or their
Subsidiaries, (E) none of the Issuers or their Subsidiaries has received notice
that it has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any comparable state law, (F) no property or facility of
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any of the Issuers or their Subsidiaries is (i) listed or proposed for listing
on the National Priorities List under CERCLA or is (ii) listed in the
Comprehensive Environmental Response, Compensation, Liability Information System
List promulgated pursuant to CERCLA, or on any comparable list maintained by any
state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the common
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law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(u) Each of the Issuers carries insurance in such amounts and
covering such risks as is reasonably adequate for the conduct of its business
and the value of its properties.
(v) Except as described in the Memorandum, no collective bargaining
agreement exists with any of the Issuers' or their Subsidiaries' employees and,
to the Issuers' knowledge, no such agreement is imminent. None of the Issuers
or their Subsidiaries is involved in any labor dispute or disturbance which
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect nor, to the knowledge of the Issuers, is any such
dispute or disturbance threatened.
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(w) None of the Issuers is, or with the giving of notice or lapse of
time or both would be, in violation of any covenant not to compete with any
entity, which violation would individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(x) Each of the Issuers and their Subsidiaries is in compliance in
all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
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defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which any of the Issuers or their Subsidiaries would have any
liability; none of the Issuers or their Subsidiaries has incurred or expects to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Section 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); none of the Issuers or their
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Subsidiaries has any liability for any prohibited transaction or funding
deficiency or any complete or partial withdrawal liability with respect to any
pension, profit sharing or other plan which is subject to ERISA, to which it
makes or ever has made a contribution and in which any employee of it is or has
ever been a participant; and each "pension plan" for which the Issuers would
have any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(y) Each of the Issuers and their Subsidiaries maintains internal
accounting controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at reasonable
intervals.
(z) None of the Issuers or their Subsidiaries is or, upon the
consummation of the Transactions, will be an "investment company" or "promoter"
or "principal underwriter" for an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(aa) The Notes, the Exchange Notes, the Guarantees, the Indenture, the
Registration Rights Agreement and this Agreement
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conform in all material respects to the descriptions thereof in the Final
Memorandum.
(bb) No holder of securities of the Issuers will be entitled to have
such securities registered under the registration statements required to be
filed by the Issuers pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(cc) Immediately after the consummation of the Transactions, the fair
value and present fair saleable value of the assets of each of the Issuers (on a
consolidated basis) will exceed the sum of its stated liabilities and identified
contingent liabilities; none of the Issuers (on a consolidated basis) is, nor
will it be, after giving effect to the execution, delivery and performance of
this Agreement and the consummation of the Transactions, (a) left with
unreasonably small capital with which to carry on its business as it is proposed
to be conducted, (b) unable to pay its debts (including identified contingent
liabilities) as they mature or (c) otherwise insolvent.
(dd) None of the Issuers or any of their respective Affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has, directly or through
any agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of any "security" (as defined in the Act), which is or
could be integrated with the sale of the Securities in a manner that would
require the registration under the Act of the Securities or (ii) engaged in any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the Securities or
in any manner involving a public offering within the meaning of Section 4(2) of
the Act. Assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 8 hereof, it is not necessary in connection with
the offer, sale and delivery of the Securities to the Initial Purchaser in the
manner contemplated by this Agreement to register any of the Securities under
the Act or to qualify the Indenture under the TIA.
(ee) No securities of the Issuers are of the same class (within the
meaning of Rule 144A under the Act) as the Securities and listed on a national
securities exchange registered under Section 6 of the Exchange Act, or quoted in
a U.S. automated inter-dealer quotation system.
(ff) None of the Issuers or their Subsidiaries has taken, nor will any
of them take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Notes.
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Any certificate signed by any officer of the Issuers and delivered to
the Initial Purchaser or to counsel for the Initial Purchaser shall be deemed a
joint and several representation and warranty by the Issuers to the Initial
Purchaser as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
----------------------------------------
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuers agree to issue
and sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase
from the Issuers, the principal amounts of Notes set forth opposite the name of
such Initial Purchaser on Schedule I hereto at a purchase price equal to
97.0% of their principal amount. One or more certificates in definitive
form for the Securities that the Initial Purchaser has agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchaser requests upon notice to the Company at least
36 hours prior to the Closing Date, shall be delivered by or on behalf of the
Issuers to the Initial Purchaser, against payment by or on behalf of the Initial
Purchaser of the purchase price therefor by wire transfer (same day funds), to
such account or accounts as the Company shall specify prior to the Closing Date,
or by such means as the parties hereto shall agree prior to the Closing Date.
Such delivery of and payment for the Notes shall be made at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ at 10:00 A.M., New York time, on May 5, 1998, or at such other place,
time or date as the Initial Purchaser, on the one hand, and the Company, on the
other hand, may agree upon, such time and date of delivery against payment being
herein referred to as the "Closing Date." The Issuers will make such
------------
certificate or certificates for the Notes available for checking and packaging
by the Initial Purchaser at the offices of the Initial Purchaser in New York,
New York, or at such other place as the Initial Purchaser may designate, at
least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser proposes
---------------------------------
to make an offering of the Notes at the price and upon the terms set forth in
the Final Memorandum, as soon as practicable after this Agreement is entered
into and as in the judgment of the Initial Purchaser is advisable.
5. Covenants of the Issuers. The Issuers covenant and agree with
------------------------
the Initial Purchaser that:
(a) The Issuers will not amend or supplement the Final Memorandum or
any amendment or supplement thereto of which the Initial Purchaser shall not
previously have been advised and furnished a copy for a reasonable period of
time prior to the
13
proposed amendment or supplement and as to which the Initial Purchaser shall not
have given its consent. The Issuers shall, promptly, upon the reasonable request
of the Initial Purchaser or counsel for the Initial Purchaser, make any
amendments or supplements to the Preliminary Memorandum or the Final Memorandum
that may be necessary or advisable in connection with the resale of the Notes by
the Initial Purchaser.
(b) The Issuers shall cooperate with the Initial Purchaser in
arranging for the qualification of the Securities for offering and sale under
the securities or "Blue Sky" laws of such jurisdictions as the Initial Purchaser
may designate and shall continue such qualifications in effect for so long as
may be necessary to complete the resale of the Securities; provided, however,
-------- -------
that in connection therewith, none of the Issuers shall be required to qualify
as a foreign corporation or to execute a general consent to service of process
in any jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the distribution by
the Initial Purchaser of the Notes or the Private Exchange Notes, any event
occurs or information becomes known as a result of which the Final Memorandum as
then amended or supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if for any other reason it is necessary at any time to amend or supplement the
Final Memorandum to comply with applicable law, the Issuers shall promptly
notify the Initial Purchaser thereof and shall prepare, at their own expense, an
amendment or supplement to the Final Memorandum that corrects such statement or
omission or effects such compliance.
(d) The Issuers shall, without charge, provide to the Initial
Purchaser and to counsel for the Initial Purchaser as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchaser may reasonably request.
(e) The Issuers shall apply the net proceeds from the sale of the
Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the
Issuers shall furnish to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by the Issuers to the Trustee
or to the holders of the Securities and, as soon as available, copies of any
reports or financial statements furnished to or filed by the
14
Issuers with the Commission or any national securities exchange on which any
class of securities of the Issuers may be listed.
(g) Prior to the Closing Date, the Issuers shall furnish to the
Initial Purchaser, as soon as they have been prepared by the Company and are
available, a copy of any unaudited interim consolidated financial statements of
the Issuers for any period subsequent to the period covered by the most recent
financial statements appearing in the Final Memorandum.
(h) Neither the Issuers nor any of their respective Affiliates shall
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any "security" (as defined in the Act) which could be integrated with the
sale of the Securities in a manner which would require the registration under
the Act of the Securities.
(i) Except as required by the terms of the Registrations Rights
Agreement, none of the Issuers shall engage in any form of general solicitation
or general advertising (as those terms are used in Regulation D under the Act)
in connection with the offering of the Securities or in any manner involving a
public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the
Issuers shall make available at their expense, upon request, to any holder of
such Securities and any prospective purchasers thereof the information specified
in Rule 144A(d)(4) under the Act, unless the Issuers are then subject to Section
13 or 15(d) of the Exchange Act.
(k) The Issuers shall use their best efforts (i) to permit the Notes
to be designated PORTAL securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. relating to
trading in the Private Offerings, Resales and Trading through Automated Linkages
market (the "Portal Market") and (ii) to permit the Notes to be eligible for
-------------
clearance and settlement through The Depository Trust Company.
(l) In connection with Notes offered and sold in an offshore
transaction (as defined in Regulation S), the Company will not register any
transfer of such Notes not made in accordance with the provisions of Regulation
S and will not, except in accordance with the provisions of Regulation S, if
applicable, issue any such Notes in the form of definitive securities.
(m) Prior to the consummation of the Exchange Offer or the
effectiveness of an applicable Shelf Registration Statement
15
(as such terms are defined in the Registration Rights Agreement) if, in the
reasonable judgment of the Initial Purchaser, the Initial Purchaser or any of
its Affiliates is required to deliver a Memorandum in connection with sales of,
or market making activities with respect to, the Securities, (A) to periodically
amend or supplement the Memorandum so that the information contained in the
Memorandum complies with the requirements of Rule 144A of the Act, (B) to amend
or supplement the Memorandum when necessary to reflect any material changes in
the information provided therein so that the Memorandum will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
existing as of the date the Memorandum is so delivered, not misleading and (C)
to provide the Initial Purchaser with copies of each such amended or
supplemented Memorandum, as the Initial Purchaser may reasonably request. The
Issuers hereby expressly acknowledge that the indemnification and contribution
provisions of Section 9 hereof are specifically applicable and relate to each
offering memorandum, registration statement, prospectus, amendment or supplement
referred to in this Section 5(m).
(n) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(o) Not to distribute prior to the Closing Date any offering material
in connection with the offering and sale of the Notes other than the Memorandum.
6. Expenses. The Issuers jointly and severally agree to pay all
--------
costs and expenses incident to the performance of their obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including all
costs and expenses incident to (i) the printing, word processing or other
production of documents with respect to the transactions contemplated hereby,
including any costs of printing the Preliminary Memorandum and the Final
Memorandum and any amendment or supplement thereto, and any "Blue Sky"
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchaser of copies of the foregoing documents, (iii) the fees and disbursements
of counsel, the accountants and any other experts or advisors retained by the
Company, (iv) preparation (including printing), issuance and delivery to the
Initial Purchaser of the Notes, (v) the qualification of the Notes under state
securities and "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel for the Initial Purchaser relating thereto, (vi)
expenses in connection with any meetings with prospective investors in the
Notes, (vii) fees and expenses of the Trustee including fees and expenses of
counsel,
16
(viii) all expenses and listing fees incurred in connection with the application
for quotation of the Notes on the PORTAL Market and (ix) any fees charged by
investment rating agencies for the rating of the Notes. If the sale of the Notes
provided for herein is not consummated because any condition to the obligations
of the Initial Purchaser set forth in Section 7 hereof is not satisfied, because
this Agreement is terminated or because of any failure, refusal or inability on
the part of the Issuers to perform all obligations and satisfy all conditions on
their part to be performed or satisfied hereunder (other than solely by reason
of a default by the Initial Purchaser of its obligations hereunder after all
conditions hereunder have been satisfied in accordance herewith), the Issuers,
jointly and severally, agree to promptly reimburse the Initial Purchaser upon
demand for all out-of-pocket expenses (including reasonable fees, disbursements
and charges of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Initial Purchaser) that
shall have been reasonably incurred by the Initial Purchaser in connection with
the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchaser's Obligations. The obligation
-------------------------------------------------
of the Initial Purchaser to purchase and pay for the Notes shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Zavis, counsel for the Issuers, in form and
substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) Each of the Issuers is duly incorporated (or in the
case of a limited partnership or limited liability company, duly
formed), validly existing and in good standing under the laws of its
jurisdiction of incorporation (or formation) and has all requisite
corporate (or partnership or limited liability company) power and
authority to own its properties and to conduct its business as
described in the Final Memorandum. Each of the Issuers is duly
qualified to do business as a foreign corporation (or limited
partnership or limited liability company) in good standing in all
other jurisdictions where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
17
(ii) The Company has the authorized, issued and
outstanding capitalization set forth in the Final Memorandum; all of
the outstanding shares of capital stock of the Company will have been
duly authorized and validly issued, fully paid and nonassessable.
(iii) Based solely upon a review of the stock (or
securities) transfer ledger, which was certified to us as true,
correct and complete, and copies of the applicable certificates, all
of the shares of capital stock of, or other securities evidencing
equity ownership interests in, each Subsidiary of the Company
purported to be owned by the Company or its Subsidiaries in the Final
Memorandum are owned by the Company, or a Subsidiary of the Company.
All of such issued and outstanding shares of capital stock of, or
other securities evidencing equity ownership interests in, each
Subsidiary of the Company (A) have been duly and validly authorized
and issued, (B) are fully paid and non-assessable, (C) have not been
issued in violation of any preemptive or, to such counsel's knowledge,
similar rights and, (D) to such counsel's knowledge, after a review of
the stock (or securities) transfer ledger, which was certified to such
counsel as true, correct and complete, and copies of the applicable
certificates are owned free and clear of any lien, except for liens
securing obligations under the Credit Facility and liens for taxes not
yet due and payable.
(iv) Except as set forth in the Final Memorandum (A)
there are no options, warrants or other rights to purchase from any of
the Issuers shares of capital stock or ownership interests in any of
the Issuers, (B) no agreements or other obligations to issue, or other
rights to convert, any obligation into, or exchange any securities
for, shares of capital stock or ownership interests in any of the
Issuers are or will be outstanding and (C) no holder of securities of
any of the Issuers is or will be entitled to have such securities
registered under a registration statement filed by the Issuers
pursuant to the Registration Rights Agreement.
(v) Each of the Issuers has all requisite corporate (or
partnership or limited liability company) power and authority to
execute, deliver and perform each of its obligations under the
Indenture, the Notes, the Exchange Notes, the Private Exchange Notes
and the Guarantees; the Indenture meets the requirements for
qualification under the TIA; the Indenture has been
18
duly and validly authorized, executed and delivered by the Issuers and
(assuming the due authorization, execution and delivery thereof by the
Trustee), constitutes the valid and legally binding agreement of the
Issuers, enforceable against each of the Issuers in accordance with
its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a court of
equity or law).
(vi) The Notes and the Guarantees are in the form
contemplated by the Indenture. The Notes and the Guarantees have been
duly and validly authorized by the applicable Issuers and, when duly
executed and delivered by the applicable Issuers and paid for by the
Initial Purchaser in accordance with the terms of this Agreement
(assuming the due authorization, execution and delivery of the
Indenture by the Trustee and due authentication and delivery of the
Notes by the Trustee in accordance with the Indenture), will
constitute the valid and legally binding obligations of the applicable
Issuers, entitled to the benefits of the Indenture, and enforceable
against each of the applicable Issuers in accordance with their terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether
such enforcement is considered in a court of equity or law).
(vii) The Exchange Notes, the Private Exchange Notes and
the Guarantees thereof have been duly and validly authorized by the
applicable Issuers, and when the Exchange Notes, the Private Exchange
Notes and the Guarantees thereof have been duly executed and delivered
by the applicable Issuers in accordance with the terms of the
Registration Rights Agreement and the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee
and due authentication and delivery of the Exchange Notes and the
Private Exchange Notes by the Trustee in accordance with the
Indenture), will constitute the valid and legally binding obligations
of the Issuers, entitled to the benefits of the Indenture, and
enforceable against
19
each of the applicable Issuers in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether
such enforcement is considered in a court of equity or law).
(viii) Each of the Issuers has all requisite corporate (or
partnership or limited liability company) power and authority to
execute, deliver and perform its obligations under the Registration
Rights Agreement; the Registration Rights Agreement has been duly and
validly authorized, executed and delivered by the Issuers (assuming
due authorization, execution and delivery thereof by the Initial
Purchaser), and constitutes the valid and legally binding agreement of
the Issuers, enforceable against each of the Issuers in accordance
with its terms, except that (A) the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a court of
equity or law) and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and
public policy considerations.
(ix) Each of the Issuers has all requisite corporate (or
partnership) power and authority to execute, deliver and perform their
obligations under this Agreement and to consummate the transactions
contemplated hereby; this Agreement and the consummation by the
Issuers of the transactions contemplated hereby have been duly and
validly authorized, executed and delivered by the Issuers.
(x) The Indenture, the Notes, the Guarantees and the
Registration Rights Agreement conform in all material respects to the
descriptions thereof contained in the Final Memorandum.
(xi) To the knowledge of such counsel, except as
disclosed in the Final Memorandum, no legal or governmental
proceedings are pending or threatened to which any of the Issuers or
any of their Subsidiaries is a party or to which the property or
assets of any of
20
the Issuers or any of their Subsidiaries is subject which, if
determined adversely to any of the Issuers or any of their
Subsidiaries, would, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, or which seeks to
restrain, enjoin, prevent the consummation of or otherwise challenge
the issuance or sale of the Notes to be sold hereunder or the
consummation of the other transactions described in the Final
Memorandum under the caption "Use of Proceeds."
(xii) To the knowledge of such counsel, none of the
Issuers is (i) in violation of its certificate or articles of
incorporation or bylaws (or limited partnership agreement or similar
organizational document), (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them
or any of their respective properties or assets, except for any such
breach or violation which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iii) in
breach or default under (nor has any event occurred which, with notice
or passage of time or both, would constitute a default under) or in
violation of any of the terms or provisions of any Contract described
in the Memorandum or otherwise known to such counsel, except for any
such breach, default, violation or event which would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(xiii) The execution, delivery and performance of this
Agreement, the Indenture, the Registration Rights Agreement and the
consummation of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Notes to
the Initial Purchaser) will not conflict with or constitute or result
in a breach or a default under (or an event which with notice or
passage of time or both would constitute a default under) or violation
of any of (i) the terms or provisions of any Contract described in the
Memorandum or otherwise known to such counsel to which any of the
Issuers or their Subsidiaries is a party, except for any such
conflict, breach, violation, default or event which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (ii) the certificate or articles of
incorporation or bylaws (or limited partnership agreement or similar
organizational document) of any of the Issuers, or (iii) (assuming
compliance with all applicable state securities or
21
"Blue Sky" laws and assuming the accuracy of the representations and
warranties of the Initial Purchaser in Section 8 hereof) any statute,
judgment, decree, order, rule or regulation described in the
Memorandum or otherwise known to such counsel to be applicable to any
of the Issuers, their Subsidiaries or any of their respective
properties or assets, except for any such conflict, breach or
violation which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(xiv) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by the
Issuers of the Securities to the Initial Purchaser or the consummation
by the Issuers of the other transactions contemplated hereby, except
such (a) as may be required under Blue Sky laws, as to which such
counsel need express no opinion, (b) as may be required from the
Commission in connection with the transactions contemplated by the
Registration Rights Agreement and (c) as have previously been
obtained.
(xv) To the knowledge of such counsel, each of the
Issuers and their Subsidiaries has obtained all Permits necessary to
conduct the businesses now or proposed to be conducted by it as
described in the Final Memorandum, the lack of which would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; to the knowledge of such counsel, each of the
Issuers and their Subsidiaries has fulfilled and performed all of its
obligations with respect to such Permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such Permit.
(xvi) To the knowledge of such counsel, the Issuers and
their Subsidiaries own or possess adequate licenses or other rights to
use all patents, trademarks, service marks, trade names, copyrights
and know-how necessary to conduct the businesses now or proposed to be
operated by them as described in the Final Memorandum, and the Issuers
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, trademarks,
service marks, trade names, copyrights or know-how which, if such
assertion of infringement or conflict were sustained, would reasonably
be expected to have a Material Adverse Effect.
22
(xvii) To the knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened against any of the
Issuers, their Subsidiaries or any of their respective properties or
assets which would be required to be described in a prospectus
pursuant to the Act that are not described in the Final Memorandum,
nor are there any material contracts or other documents which would be
required to be described in a prospectus pursuant to the Act that are
not described in the Final Memorandum.
(xviii) None of the Issuers is, nor immediately after the
sale of the Notes to be sold hereunder and the application of the
proceeds from such sale (as described in the Final Memorandum under
the caption "Use of Proceeds") will be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended.
(xix) No registration under the Act of the Notes is
required in connection with the sale of the Notes to the Initial
Purchaser as contemplated by this Agreement and the Final Memorandum
or in connection with the initial resale of the Notes by the Initial
Purchaser in accordance with Section 8 of this Agreement, and prior to
the commencement of the Exchange Offer (as defined in the Registration
Rights Agreement) or the effectiveness of a Shelf Registration
Statement (as defined in the Registration Rights Agreement), the
Indenture is not required to be qualified under the TIA, in each case
assuming (i) (A) that the purchasers who buy such Notes in the initial
resale thereof are Qualified Institutional Buyers or Accredited
Investors or (B) that the offer or sale of the Notes is made in an
offshore transaction as defined in Regulation S, (ii) the accuracy of
the Initial Purchaser's representations in Section 8 and those of the
Issuers contained in this Agreement regarding the absence of a general
solicitation in connection with the sale of such Notes to the Initial
Purchaser and the initial resale thereof and (iii) the due performance
by the Initial Purchaser of the agreements set forth in Section 8
hereof.
(xx) Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Notes will violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
23
(xxi) The statements under the captions "Risk Factors--
Reliance on Third Party Reimbursement," "Risk Factors--Extensive
Government Regulation," "Use of Proceeds," "Business--Dialysis
Industry Overview" (last paragraph only), "Business--Sources of
Revenue Reimbursement," "Business--Regulatory Matters," "Management--
Employment Agreements," "Management--Voting Agreements," "Certain
Relationships and Related Transactions," "Description of Credit
Facility," "Description of Notes," "Exchange Offer; Registration
Rights," and "Certain Federal Income Tax Considerations" in the Final
Memorandum, insofar as such statements constitute a summary of legal
matters, documents or proceedings referred to therein (to such
counsel's knowledge with respect to factual matters) are correct in
all material respects.
(xxii) When the Notes are issued and delivered pursuant to
this Agreement, such Notes will not be of the same class (within the
meaning of Rule 144A under the Act) as securities of the Issuer that
are listed on a national securities exchange registered under Section
6 of the Exchange Act or that are quoted in a United States automated
inter-dealer quotation system.
(xxiii) Each of the Preliminary Memorandum and the Final
Memorandum, as of its respective date, and each amendment or
supplement thereto, as of its date (except for the financial statement
and the notes thereto and schedules and other financial, statistical
and accounting data included therein, as to which no opinion need be
expressed), complied as to form in all material respects with the
requirements of Rule 144A(d)(4) of the Act.
At the time the foregoing opinion is delivered, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
shall additionally state that it has participated in conferences with officers
and other representatives of the Issuers, representatives of the independent
public accountants for the Issuers, representatives of the Initial Purchaser and
counsel for the Initial Purchaser, at which conferences the contents of the
Final Memorandum and related matters were discussed, and, although it has not
independently verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in the Final
Memorandum (except to the extent specified in subsection 7(a)(x) and (xxi)), no
facts have come to their attention which lead them to believe that the Final
Memorandum, on the date thereof or at the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated
24
therein or necessary to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such firm need express no opinion with respect to the financial
statements and related notes thereto and the other financial and accounting data
included in the Final Memorandum). The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Zavis
described in this Section shall be rendered to the Initial Purchaser at the
request of the Issuers and shall so state therein.
Such counsel is licensed to practice law in the State of Illinois and
will express no opinion as to any laws other than the internal laws of the State
of Illinois, the General Corporation Laws of the State of Delaware, the Laws of
the State of New York, and the federal laws of the United States. The opinions
required by this Section 7(a) may be subject to such exceptions and
qualifications as you and your counsel deem reasonable.
(b) On the Closing Date, the Initial Purchaser shall have received
the opinion, in form and substance satisfactory to the Initial Purchaser, dated
as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, counsel for the Initial Purchaser, with respect to certain legal
matters relating to this Agreement and such other related matters as the Initial
Purchaser may reasonably request. In rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other
documents and information as it may reasonably request to pass upon such
matters.
(c) The Initial Purchaser shall have received from the Independent
Accountants a comfort letter or letters dated the date hereof and the Closing
Date, in form and substance satisfactory to counsel for the Initial Purchaser.
(d) The representations and warranties of the Issuers contained in
this Agreement shall be true and correct on and as of the date hereof and on and
as of the Closing Date as if made on and as of the Closing Date; the statements
of the officers of the Issuers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct on and as of the
date made and on and as of the Closing Date; the Issuers shall have performed
all covenants and agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date; and, except as
described in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), subsequent to the date of the most recent
financial statements in such Final Memorandum, there shall have been no event or
development, and no information shall have become known, that, individually or
in the
25
aggregate, has or would be reasonably expected to have a Material Adverse
Effect.
(e) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in
the Final Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), none of the Issuers shall have sustained any loss or interference
with respect to its business or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any strike,
labor dispute, slow down or work stoppage or from any legal or governmental
proceeding, order or decree, which loss or interference, individually or in the
aggregate, has or would be reasonably expected to have a Material Adverse
Effect.
(g) The Initial Purchaser shall have received a certificate of the
Issuers, dated the Closing Date, signed on behalf of each of the Issuers by its
Chairman of the Board, President or any Senior Vice President and the Chief
Financial Officer, or other executive officers (as defined in the Exchange Act)
to the effect that:
(i) The representations and warranties of the Issuers
contained in this Agreement are true and correct on and as of the date
hereof and on and as of the Closing Date, and each of the Issuers has
performed all covenants and agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior to the
Closing Date;
(ii) At the Closing Date, since the date hereof or since
the date of the most recent financial statements in the Final
Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), no event or development has occurred, and no information
has become known, that, individually or in the aggregate, has or would
be reasonably expected to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently).
(h) On the Closing Date, the Initial Purchaser shall have received
the Registration Rights Agreement executed by the Issuers and such agreement
shall be in full force and effect.
(i) The Indenture shall have been duly executed and delivered by the
Issuers and the Trustee, and the Securities
26
shall have been duly executed and delivered by the Issuers and duly
authenticated by the Trustee.
(j) The Initial Purchaser shall have received a true and correct copy
of the Credit Facility, copies of which have previously been provided to the
Initial Purchaser by the Company, and there shall have been no material
amendments, alterations, modifications or waivers of any provisions of the
Credit Facility, and there shall exist as of the date hereof and on and as of
the Closing Date (after giving effect to the transactions contemplated by this
Agreement and the application of the proceeds received by the Issuers) no
condition that would constitute a Default or an Event of Default (each as
defined in the Credit Facility) under the Credit Facility.
On or before the Closing Date, the Initial Purchaser and counsel for
the Initial Purchaser shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Issuers as they shall have
theretofore reasonably requested.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchaser and counsel for the Initial Purchaser. The Issuers shall
furnish to the Initial Purchaser such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchaser shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. (a) The Initial
-------------------------------------------
Purchaser represents and warrants that it is a QIB. The Initial Purchaser
agrees that (i) it has not and will not solicit offers for, or offer or sell,
the Notes by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act; and (ii) it has
and will solicit offers for the Notes only from, and will offer the Notes only
to (A) in the case of offers inside the United States, (x) persons whom the
Initial Purchaser reasonably believes to be QIBs or, if any such person is
buying for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to the Initial
Purchaser that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, and, in each case,
in transactions under Rule 144A or (y) a limited number of other institutional
investors reasonably believed by the Initial Purchaser to be Accredited
Investors that, prior to their
27
purchase of the Notes, deliver to the Initial Purchaser a letter containing the
representations and agreements set forth in Appendix A to the Final Memorandum
and (B) in the case of offers outside the United States, to persons other than
U.S. persons ("foreign purchasers," which term shall include dealers or other
------------------
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)); provided,
--------
however, that, in the case of this clause (B), in purchasing such Notes such
-------
foreign purchasers are deemed to have represented and agreed as provided under
the caption "Transfer Restrictions" contained in the Final Memorandum (or, if
the Final Memorandum is not in existence, in the most recent Memorandum).
(b) The Initial Purchaser represents and warrants with respect to
offers and sales outside the United States that (i) it has and will comply with
all applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Notes or has in its possession or distributes any
Memorandum or any such other material, in all cases at its own expense; (ii) the
Notes have not been and will not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Act or pursuant to an exemption from the registration
requirements of the Act; (iii) it has offered the Notes and will offer and sell
the Notes (A) as part of its distribution at any time and (B) otherwise until 40
days after the later of the commencement of the offering and the Closing Date,
only in accordance with Rule 903 of Regulation S and, accordingly, neither it
nor any persons acting on its behalf have engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to the Notes,
and any such persons have complied and will comply with the offering
restrictions requirement of Regulation S; and (iv) it agrees that, at or prior
to confirmation of sales of the Notes, it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Notes from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (the "Securities Act") and
may not be offered and sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of the
distribution of the Securities at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering
and the closing date of the offering, except in either case in
accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meaning given to
them in Regulation S."
28
Terms used in this Section 8 and not defined in this Agreement have the meanings
given to them in Regulation S.
9. Indemnification and Contribution. (a) The Issuers, jointly and
--------------------------------
severally, agree to indemnify and hold harmless the Initial Purchaser, and each
person, if any, who controls the Initial Purchaser within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Initial Purchaser or such controlling person
may become subject under the Act, the Exchange Act or otherwise, insofar as any
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or
supplement thereto or any application or other document, or any
amendment or supplement thereto, or based upon written information
furnished by or on behalf of any of the Issuers filed in any
jurisdiction in order to qualify the Notes under the securities or
"Blue Sky" laws thereof (each an "Application"); or
-----------
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto or any Application,
a material fact required to be stated therein or necessary to make the
statements therein not, in light of the circumstances under which they
were made, misleading,
and shall reimburse, as incurred, the Initial Purchaser and each such
controlling person for any legal or other expenses incurred by the Initial
Purchaser or such controlling person in connection with investigating, defending
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action; provided, however, the Issuers shall not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Memorandum or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Issuers by the Initial
Purchaser specifically for use therein; provided further, however, that the
-------- ------- -------
Issuers shall not be liable to any Initial Purchaser or any controlling person
of such Initial Purchaser from whom the person asserting any such losses,
claims, damages or liabilities purchased Notes, if a copy of the Offering
Memorandum (as then amended or supplemented if the Issuers shall have furnished
any amendment or supplement thereto) was not sent or given by or on behalf of
such Initial Purchaser to such
29
person, at or prior to the written confirmation of the sale of the Notes, and
the Offering Memorandum (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities. This
indemnity agreement will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. The Issuers shall not be liable under
this Section 9 for any settlement of any claim or action effected without their
prior written consent, which shall not be unreasonably withheld, unless (i) such
settlement is entered into more than 30 days after receipt by the Issuers of a
request for indemnification and (ii) the Issuers shall not have reimbursed the
Initial Purchaser in accordance with such request prior to the date of such
settlement or, if the Issuers in good faith dispute the amount of such
reimbursement due to the Initial Purchaser and the Issuers shall have failed to
provide the Initial Purchaser with reasonable security for payment of such
disputed amounts.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Issuers, their directors, officers, employees, agents and representatives and
each person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Issuers or any such director, officer, employee,
agent, representative or controlling person may become subject under the Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Memorandum or any amendment or supplement thereto or any Application, or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated in any Memorandum or any amendment or supplement thereto
or any Application, or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information, furnished to the Issuers by the
Initial Purchaser specifically for use therein; and subject to the limitation
set forth immediately preceding this clause, shall reimburse, as incurred, any
legal or other expenses incurred by the Issuers or any such director, officer,
employee, agent, representative or controlling person in connection with
investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability that the
Initial Purchaser may otherwise have to the indemnified parties. The Initial
Purchaser shall not be liable under this Section 9 for any settlement of any
claim or action effected without its consent, which shall not be unreasonably
withheld. The Issuers shall not,
30
without the prior written consent of the Initial Purchaser, effect any
settlement or compromise of any pending or threatened proceeding in respect of
which the Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by the Initial Purchaser, unless such settlement
either (i) both (A) includes an unconditional written release of the Initial
Purchaser, in form and substance reasonably satisfactory to the Initial
Purchaser, from all liability on claims that are the subject matter of such
proceeding, and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of the Initial Purchaser, or both
(ii) (A) such settlement is entered into more than 30 days after receipt by the
Initial Purchaser of a request for indemnification and (B) the Initial Purchaser
shall not have reimbursed the Issuers in accordance with such request prior to
the date of such settlement or, if the Initial Purchaser in good faith disputes
the amount of such reimbursement due o the Issuers and the Initial Purchaser
shall have failed to provide the Issuers with reasonable security for payment of
such disputed amounts.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 9, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party of the commencement thereof
in writing; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
-------- -------
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time
31
after receipt by the indemnifying party of notice of the institution of such
action, then, in each such case, the indemnifying party shall not have the right
to direct the defense of such action on behalf of such indemnified party or
parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties at the expense of the indemnifying party. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party shall not be liable to such
indemnified party under this Section 9 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchaser in the case of paragraph (a) of this Section
9 or the Issuers in the case of paragraph (b) of this Section 9, representing
the indemnified parties under such paragraph (a) or paragraph (b), as the case
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, except as otherwise expressly
provided in the last sentence of Section 9(a) or 9(b), the indemnifying party
shall not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld).
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the
32
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Issuers on the one hand and the Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the Offering
(before deducting expenses) received by the Issuers bear to the total discounts
and commissions received by the Initial Purchaser. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
on the one hand, or the Initial Purchaser on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission, and any other
equitable considerations appropriate in the circumstances. The parties agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), the Initial Purchaser shall not be obligated to
make contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by the Initial Purchaser under this
Agreement, less the aggregate amount of any damages that the Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
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. For purposes of this paragraph (d),
each person, if any, who controls the Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser, and each director of the
Issuers, each officer, employee, agent or representative of the Issuers and each
person, if any, who controls the Issuers within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Issuers.
10. Survival Clause. The respective representations, warranties,
---------------
agreements, covenants, indemnities and other statements of the Issuers, their
officers and the Initial Purchaser set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Issuers, any of
their respective officers or directors,
33
the Initial Purchaser or any controlling person referred to in Section 9 hereof
and (ii) delivery of and payment for the Notes. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6, 9, 15 and
16 hereof shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
-----------
discretion of the Initial Purchaser by notice to the Issuers given prior to the
Closing Date in the event that the Issuers shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on their part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) any of the Issuers or their Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, labor
dispute, slow down or work stoppage or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the
Initial Purchaser, has had or has a Material Adverse Effect, or there
shall have been, in the sole judgment of the Initial Purchaser, any
event or development that, individually or in the aggregate, has or
could be reasonably likely to have a Material Adverse Effect
(including without limitation a change in control of any of the
Issuers), except in each case as described in the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the New York Stock Exchange, American Stock Exchange or
the NASDAQ National Market shall have been suspended or minimum or
maximum prices shall have been established on any such exchange or
market;
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency, or (C) any material change in the financial
markets of the United States which, in the case of (A), (B) or (C)
above and in the sole judgment of the Initial Purchaser, makes it
34
impracticable or inadvisable to proceed with the offering or the
delivery of the Notes as contemplated by the Final Memorandum; or
(v) any securities of the Company shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchaser. The statements
---------------------------------------------
set forth in the last paragraph on the front cover page and in the last two
sentences of the third paragraph, the second and third sentence of the fifth
paragraph, and the sixth and seventh paragraphs under the heading "Private
Placement" in the Final Memorandum (to the extent such statements relate to the
Initial Purchaser) constitute the only information furnished by the Initial
Purchaser to the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
-------
if sent to the Initial Purchaser, shall be mailed or delivered to BT Alex. ▇▇▇▇▇
Incorporated, Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇; or if sent to the Issuers, shall be mailed or delivered to them at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇: Chief Financial Officer, with a copy
to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the Initial Purchaser and the Issuers and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers contained in Section 9 of this
35
Agreement shall also be for the benefit of any person or persons who control the
Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Initial Purchaser contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
the Issuers, their officers, agents, representatives and employees and any
person or persons who control the Issuers within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Notes from the
Initial Purchaser will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
--------------
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
--------------------
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT.
17. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
36
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Company,
the Subsidiary Guarantors and the Initial Purchaser.
Very truly yours,
EVEREST HEALTHCARE SERVICES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
AMARILLO ACUTE DIALYSIS SPECIALISTS, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
CON-MED SUPPLY COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
CONTINENTAL HEALTH CARE, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
DIALYSIS SPECIALISTS OF CORPUS CHRISTI,
L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
DIALYSIS SPECIALISTS OF SOUTH TEXAS, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
-37-
DUPAGE DIALYSIS LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
EVEREST MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
HEMO DIALYSIS OF AMARILLO L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
HOME DIALYSIS OF AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
HOME DIALYSIS OF DAYTON, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
LAKE AVENUE DIALYSIS CENTER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
MERCY DIALYSIS CENTER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
-38-
NEW YORK DIALYSIS MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
NORTH ▇▇▇▇▇▇▇ DIALYSIS CENTER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
NORTHWEST INDIANA DIALYSIS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
OHIO VALLEY DIALYSIS CENTER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
WSKC DIALYSIS SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BT ALEX. ▇▇▇▇▇ INCORPORATED,
as Initial Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
-39-
SCHEDULE I
Principal Amount
of Notes
Underwriter To Be Purchased
----------- ----------------
BT Alex. ▇▇▇▇▇ Incorporated $100,000,000
------------
Total...................... $100,000,000
------------
40