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Exhibit 10.2
EXECUTION COPY
TEAM HEALTH, INC.
THE GUARANTORS NAMED HEREIN
$100,000,000
12% Series A Senior Subordinated Notes due 2009
Purchase Agreement
March 5, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
NATIONSBANC MONTGOMERY
SECURITIES LLC
FLEET SECURITIES, INC.
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$100,000,000
12% SERIES A SENIOR SUBORDINATED NOTES DUE 2009
OF TEAM HEALTH, INC.
PURCHASE AGREEMENT
March 5, 1999
Donaldson, Lufkin & Jenrette Securities Corporation
NationsBanc Montgomery Securities LLC
Fleet Securities, Inc.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Team Health, Inc., a Tennessee corporation (the "COMPANY"), proposes to
issue and sell to Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"),
NationsBanc Montgomery Securities LLC and Fleet Securities, Inc. (each, an
"INITIAL PURCHASER" and collectively, the "INITIAL PURCHASERS") an aggregate of
$100,000,000 in principal amount of its 12% Series A Senior Subordinated Notes
due 2009 (the "SERIES A NOTES"), subject to the terms and conditions set forth
herein. The Series A Notes are to be issued pursuant to the provisions of an
indenture (the "INDENTURE"), to be dated as of the Closing Date (as defined
below), among the Company, the Guarantors (as defined below) and United States
Trust Company of New York, as trustee (the "TRUSTEE"). The Series A Notes and
the Series B Notes (as defined below) issuable in exchange therefor are
collectively referred to herein as the "NOTES." The Notes will be guaranteed
(the "SUBSIDIARY GUARANTEES") by each of the entities listed on Schedule A,
hereto (each, a "GUARANTOR" and collectively the "GUARANTORS"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Indenture.
0. 0. 1. OFFERING MEMORANDUM.
THE SERIES A NOTES WILL BE OFFERED AND SOLD TO THE INITIAL PURCHASERS
PURSUANT TO ONE OR MORE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE COMPANY AND THE GUARANTORS
HAVE PREPARED A PRELIMINARY OFFERING MEMORANDUM, DATED FEBRUARY 19, 1999
RELATING TO THE SERIES A NOTES AND THE SUBSIDIARY GUARANTEES (THE "PRELIMINARY
OFFERING MEMORANDUM") AND A FINAL OFFERING MEMORANDUM, DATED MARCH 5, 1999
RELATING TO THE SERIES A NOTES AND THE SUBSIDIARY GUARANTEES (THE "OFFERING
MEMORANDUM").
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UPON ORIGINAL ISSUANCE THEREOF, AND UNTIL SUCH TIME AS THE SAME IS NO
LONGER REQUIRED PURSUANT TO THE INDENTURE, THE SERIES A NOTES (AND ALL
SECURITIES ISSUED IN EXCHANGE THEREFOR, IN SUBSTITUTION THEREOF OR UPON
CONVERSION THEREOF) SHALL BEAR THE FOLLOWING LEGEND:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501 (A) (1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF
THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
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(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING."
0. 0. 2. AGREEMENTS TO SELL AND PURCHASE.
ON THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED
IN THIS AGREEMENT, AND SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE
COMPANY AGREES TO ISSUE AND SELL TO THE INITIAL PURCHASERS, AND EACH INITIAL
PURCHASER AGREES, SEVERALLY AND NOT JOINTLY, TO PURCHASE FROM THE COMPANY, THE
PRINCIPAL AMOUNTS OF SERIES A NOTES SET FORTH OPPOSITE THE NAME OF SUCH INITIAL
PURCHASER ON SCHEDULE C HERETO AT A PURCHASE PRICE EQUAL TO 97% OF THE PRINCIPAL
AMOUNT THEREOF (THE "PURCHASE PRICE").
0. 0. 3. TERMS OF OFFERING.
THE INITIAL PURCHASERS HAVE ADVISED THE COMPANY THAT THE INITIAL
PURCHASERS WILL MAKE OFFERS (THE "EXEMPT RESALES") OF THE SERIES A NOTES
PURCHASED HEREUNDER ON THE TERMS SET FORTH IN THE OFFERING MEMORANDUM, AS
AMENDED OR SUPPLEMENTED, SOLELY TO PERSONS WHOM THE INITIAL PURCHASERS
REASONABLY BELIEVE TO BE "QUALIFIED INSTITUTIONAL BUYERS" AS DEFINED IN RULE
144A UNDER THE ACT ("QIBS"), SUCH PERSONS BEING REFERRED TO HEREIN AS THE
"ELIGIBLE PURCHASERS." THE INITIAL PURCHASERS WILL OFFER THE SERIES A NOTES TO
ELIGIBLE PURCHASERS INITIALLY AT A PRICE EQUAL TO 100.0% OF THE PRINCIPAL AMOUNT
THEREOF. SUCH PRICE MAY BE CHANGED AT ANY TIME WITHOUT NOTICE.
HOLDERS (INCLUDING SUBSEQUENT TRANSFEREES) OF THE SERIES A NOTES WILL
HAVE THE REGISTRATION RIGHTS SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT (THE
"REGISTRATION RIGHTS AGREEMENT"), TO BE DATED THE CLOSING DATE, IN SUBSTANTIALLY
THE FORM OF EXHIBIT A HERETO, FOR SO LONG AS SUCH SERIES A NOTES CONSTITUTE
"TRANSFER RESTRICTED SECURITIES" (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT). PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT, THE COMPANY AND THE
GUARANTORS WILL AGREE TO FILE WITH THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION") UNDER THE CIRCUMSTANCES SET FORTH THEREIN, (i) A REGISTRATION
STATEMENT UNDER THE ACT (THE "EXCHANGE OFFER REGISTRATION STATEMENT") RELATING
TO THE COMPANY'S 12% SERIES B SENIOR SUBORDINATED NOTES DUE 2009 (THE "SERIES B
NOTES") AND THE SUBSIDIARY GUARANTEES THEREOF, TO BE OFFERED IN EXCHANGE FOR THE
SERIES A NOTES (SUCH OFFER TO EXCHANGE BEING REFERRED TO AS THE "EXCHANGE
OFFER") AND THE SUBSIDIARY GUARANTEES THEREOF AND (ii) A SHELF REGISTRATION
STATEMENT PURSUANT TO RULE 415 UNDER THE ACT (THE "SHELF REGISTRATION STATEMENT"
AND, TOGETHER WITH THE EXCHANGE OFFER REGISTRATION STATEMENT, THE "REGISTRATION
STATEMENTS") RELATING TO THE RESALE BY CERTAIN HOLDERS OF THE SERIES A NOTES AND
SUBSIDIARY GUARANTEES THEREOF AND TO USE ITS BEST EFFORTS TO CAUSE SUCH
REGISTRATION STATEMENTS TO BE
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DECLARED AND REMAIN EFFECTIVE AND USABLE FOR THE PERIODS SPECIFIED IN THE
REGISTRATION RIGHTS AGREEMENT AND TO CONSUMMATE THE EXCHANGE OFFER. THIS
AGREEMENT, THE INDENTURE, THE NOTES, THE SUBSIDIARY GUARANTEES AND THE
REGISTRATION RIGHTS AGREEMENT ARE HEREINAFTER SOMETIMES REFERRED TO COLLECTIVELY
AS THE "OPERATIVE DOCUMENTS."
0. 0. 4. DELIVERY AND PAYMENT.
a. DELIVERY OF, AND PAYMENT OF THE PURCHASE PRICE FOR, THE
SERIES A NOTES SHALL BE MADE AT THE OFFICES OF KIRKLAND & ELLIS, 153 EAST 53RD
STREET, NEW YORK, NEW YORK 10022 OR SUCH OTHER LOCATION AS MAY BE MUTUALLY
ACCEPTABLE. SUCH DELIVERY AND PAYMENT SHALL BE MADE AT 9:00 A.M. NEW YORK CITY
TIME, ON MARCH 12, 1999 OR AT SUCH OTHER TIME ON THE SAME DATE OR SUCH OTHER
DATE AS SHALL BE AGREED UPON BY THE INITIAL PURCHASERS AND THE COMPANY IN
WRITING. THE TIME AND DATE OF SUCH DELIVERY AND THE PAYMENT FOR THE SERIES A
NOTES ARE HEREIN CALLED THE "CLOSING DATE."
b. ONE OR MORE OF THE SERIES A NOTES IN DEFINITIVE GLOBAL
FORM, REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST
COMPANY ("DTC"), HAVING AN AGGREGATE PRINCIPAL AMOUNT CORRESPONDING TO THE
AGGREGATE PRINCIPAL AMOUNT OF THE SERIES A NOTES SOLD PURSUANT TO EXEMPT RESALES
(COLLECTIVELY, THE "GLOBAL NOTE"), SHALL BE DELIVERED BY THE COMPANY TO THE
INITIAL PURCHASERS (OR AS THE INITIAL PURCHASERS DIRECT) IN EACH CASE WITH ANY
TRANSFER TAXES THEREON DULY PAID BY THE COMPANY AGAINST PAYMENT BY THE INITIAL
PURCHASERS OF THE PURCHASE PRICE THEREOF BY WIRE TRANSFER IN SAME DAY FUNDS TO
THE ORDER OF THE COMPANY. THE GLOBAL NOTE SHALL BE MADE AVAILABLE TO THE INITIAL
PURCHASERS FOR INSPECTION NOT LATER THAN 9:30 A.M., NEW YORK CITY TIME, ON THE
BUSINESS DAY IMMEDIATELY PRECEDING THE CLOSING DATE.
0. 0. 1. AGREEMENTS OF THE COMPANY AND THE GUARANTORS.
EACH OF THE COMPANY AND THE GUARANTORS HEREBY AGREE WITH THE INITIAL
PURCHASERS AS FOLLOWS:
a. TO ADVISE THE INITIAL PURCHASERS PROMPTLY AND, IF REQUESTED
BY THE INITIAL PURCHASERS, CONFIRM SUCH ADVICE IN WRITING, (i) OF THE ISSUANCE
BY ANY STATE SECURITIES COMMISSION OF ANY STOP ORDER SUSPENDING THE
QUALIFICATION OR EXEMPTION FROM QUALIFICATION OF ANY SERIES A NOTES FOR OFFERING
OR SALE IN ANY JURISDICTION DESIGNATED BY THE INITIAL PURCHASERS PURSUANT TO
SECTION 5(e) HEREOF, OR THE INITIATION OF ANY PROCEEDING BY ANY STATE SECURITIES
COMMISSION OR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY FOR SUCH PURPOSE
AND (ii) OF THE HAPPENING OF ANY EVENT DURING THE PERIOD REFERRED TO IN SECTION
5(c) BELOW THAT MAKES ANY STATEMENT OF A MATERIAL FACT MADE IN THE PRELIMINARY
OFFERING MEMORANDUM OR THE OFFERING MEMORANDUM UNTRUE OR THAT REQUIRES ANY
ADDITIONS TO OR CHANGES IN THE PRELIMINARY OFFERING MEMORANDUM OR THE OFFERING
MEMORANDUM IN ORDER TO MAKE THE STATEMENTS THEREIN NOT MISLEADING. THE COMPANY
AND THE GUARANTORS SHALL USE THEIR RESPECTIVE BEST EFFORTS TO PREVENT THE
ISSUANCE OF ANY STOP ORDER OR ORDER SUSPENDING THE QUALIFICATION OR EXEMPTION OF
ANY SERIES A NOTES UNDER ANY STATE SECURITIES OR BLUE SKY LAWS AND, IF AT ANY
TIME ANY STATE SECURITIES COMMISSION OR OTHER FEDERAL OR STATE REGULATORY
AUTHORITY SHALL ISSUE AN ORDER SUSPENDING THE QUALIFICATION OR EXEMPTION OF ANY
SERIES A NOTES UNDER ANY STATE SECURITIES OR BLUE SKY LAWS, THE COMPANY AND THE
GUARANTORS SHALL USE THEIR
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RESPECTIVE BEST EFFORTS TO OBTAIN THE WITHDRAWAL OR LIFTING OF SUCH ORDER AT THE
EARLIEST POSSIBLE TIME.
b. TO FURNISH THE INITIAL PURCHASERS AND THOSE PERSONS
IDENTIFIED BY THE INITIAL PURCHASERS TO THE COMPANY AS MANY COPIES OF THE
PRELIMINARY OFFERING MEMORANDUM AND THE OFFERING MEMORANDUM, AND ANY AMENDMENTS
OR SUPPLEMENTS THERETO, AS THE INITIAL PURCHASERS MAY REASONABLY REQUEST FOR THE
TIME PERIOD SPECIFIED IN SECTION 5(c). SUBJECT TO THE INITIAL PURCHASERS'
COMPLIANCE WITH ITS REPRESENTATIONS AND WARRANTIES AND AGREEMENTS SET FORTH IN
SECTION 7 HEREOF, THE COMPANY CONSENTS TO THE USE OF THE PRELIMINARY OFFERING
MEMORANDUM AND THE OFFERING MEMORANDUM, AND ANY AMENDMENTS AND SUPPLEMENTS
THERETO REQUIRED PURSUANT HERETO, BY THE INITIAL PURCHASERS IN CONNECTION WITH
EXEMPT RESALES.
c. DURING SUCH PERIOD AS IN THE OPINION OF COUNSEL FOR THE
INITIAL PURCHASERS AN OFFERING MEMORANDUM IS REQUIRED BY LAW TO BE DELIVERED IN
CONNECTION WITH EXEMPT RESALES BY THE INITIAL PURCHASERS (i) NOT TO MAKE ANY
AMENDMENT OR SUPPLEMENT TO THE OFFERING MEMORANDUM OF WHICH THE INITIAL
PURCHASERS SHALL NOT PREVIOUSLY HAVE BEEN ADVISED OR TO WHICH THE INITIAL
PURCHASER SHALL REASONABLY OBJECT AFTER BEING SO ADVISED AND (ii) TO PREPARE
PROMPTLY UPON THE INITIAL PURCHASERS' REASONABLE REQUEST, ANY AMENDMENT OR
SUPPLEMENT TO THE OFFERING MEMORANDUM WHICH MAY BE NECESSARY OR ADVISABLE IN
CONNECTION WITH SUCH EXEMPT RESALES.
d. IF, DURING THE PERIOD REFERRED TO IN SECTION 5(c) ABOVE,
ANY EVENT SHALL OCCUR OR CONDITION SHALL EXIST AS A RESULT OF WHICH, IN THE
OPINION OF COUNSEL TO THE INITIAL PURCHASERS, IT BECOMES NECESSARY TO AMEND OR
SUPPLEMENT THE OFFERING MEMORANDUM IN ORDER TO MAKE THE STATEMENTS THEREIN, IN
THE LIGHT OF THE CIRCUMSTANCES WHEN SUCH OFFERING MEMORANDUM IS DELIVERED TO AN
ELIGIBLE PURCHASER, NOT MISLEADING, OR IF, IN THE OPINION OF COUNSEL TO THE
INITIAL PURCHASERS, IT IS NECESSARY TO AMEND OR SUPPLEMENT THE OFFERING
MEMORANDUM TO COMPLY WITH ANY APPLICABLE LAW, FORTHWITH TO PREPARE AN
APPROPRIATE AMENDMENT OR SUPPLEMENT TO SUCH OFFERING MEMORANDUM SO THAT THE
STATEMENTS THEREIN, AS SO AMENDED OR SUPPLEMENTED, WILL NOT, IN THE LIGHT OF THE
CIRCUMSTANCES WHEN IT IS SO DELIVERED, BE MISLEADING, OR SO THAT SUCH OFFERING
MEMORANDUM WILL COMPLY WITH APPLICABLE LAW, AND TO FURNISH TO THE INITIAL
PURCHASERS AND SUCH OTHER PERSONS AS THE INITIAL PURCHASERS MAY DESIGNATE SUCH
NUMBER OF COPIES THEREOF AS THE INITIAL PURCHASERS MAY REASONABLY REQUEST.
e. PRIOR TO THE SALE OF ALL SERIES A NOTES PURSUANT TO EXEMPT
RESALES AS CONTEMPLATED HEREBY, TO COOPERATE WITH THE INITIAL PURCHASERS AND
COUNSEL TO THE INITIAL PURCHASERS IN CONNECTION WITH THE REGISTRATION OR
QUALIFICATION OF THE SERIES A NOTES FOR OFFER AND SALE TO THE INITIAL PURCHASERS
AND PURSUANT TO EXEMPT RESALES UNDER THE SECURITIES OR BLUE SKY LAWS OF SUCH
JURISDICTIONS AS THE INITIAL PURCHASERS MAY REQUEST AND TO CONTINUE SUCH
REGISTRATION OR QUALIFICATION IN EFFECT SO LONG AS REQUIRED FOR EXEMPT RESALES
AND TO FILE SUCH CONSENTS TO SERVICE OF PROCESS OR OTHER DOCUMENTS AS MAY BE
NECESSARY IN ORDER TO EFFECT SUCH REGISTRATION OR QUALIFICATION; PROVIDED,
HOWEVER, THAT NEITHER THE COMPANY NOR ANY GUARANTOR
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SHALL BE REQUIRED IN CONNECTION THEREWITH TO QUALIFY AS A FOREIGN CORPORATION IN
ANY JURISDICTION IN WHICH IT IS NOT NOW SO QUALIFIED OR TO TAKE ANY ACTION THAT
WOULD SUBJECT IT TO GENERAL CONSENT TO SERVICE OF PROCESS OR TAXATION OTHER THAN
AS TO MATTERS AND TRANSACTIONS RELATING TO THE PRELIMINARY OFFERING MEMORANDUM,
THE OFFERING MEMORANDUM OR EXEMPT RESALES, IN ANY JURISDICTION IN WHICH IT IS
NOT NOW SO SUBJECT.
f. SO LONG AS ANY OF THE SERIES A NOTES REMAIN OUTSTANDING AND
DURING ANY PERIOD IN WHICH THE COMPANY AND THE GUARANTORS ARE NOT SUBJECT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE
"EXCHANGE ACT"), TO MAKE AVAILABLE TO ANY HOLDER OF SERIES A NOTES IN CONNECTION
WITH ANY SALE THEREOF AND ANY PROSPECTIVE PURCHASER OF SUCH SERIES A NOTES FROM
SUCH HOLDER, THE INFORMATION ("RULE 144A INFORMATION") REQUIRED BY RULE
144A(d)(4) UNDER THE ACT.
g. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED IN THIS
AGREEMENT ARE CONSUMMATED OR THIS AGREEMENT IS TERMINATED, TO PAY OR CAUSE TO BE
PAID ALL EXPENSES INCIDENT TO THE PERFORMANCE OF THE OBLIGATIONS OF THE COMPANY
AND THE GUARANTORS UNDER THIS AGREEMENT, INCLUDING: (i) THE FEES, DISBURSEMENTS
AND EXPENSES OF COUNSEL TO THE COMPANY AND THE GUARANTORS AND ACCOUNTANTS OF THE
COMPANY AND THE GUARANTORS IN CONNECTION WITH THE SALE AND DELIVERY OF THE
SERIES A NOTES TO THE INITIAL PURCHASERS AND PURSUANT TO EXEMPT RESALES, AND ALL
OTHER FEES AND EXPENSES IN CONNECTION WITH THE PREPARATION, PRINTING, FILING AND
DISTRIBUTION OF THE PRELIMINARY OFFERING MEMORANDUM, THE OFFERING MEMORANDUM AND
ALL AMENDMENTS AND SUPPLEMENTS TO ANY OF THE FOREGOING (INCLUDING FINANCIAL
STATEMENTS), INCLUDING THE MAILING AND DELIVERING OF COPIES THEREOF TO THE
INITIAL PURCHASERS AND PERSONS DESIGNATED BY THEM IN THE QUANTITIES SPECIFIED
HEREIN, (ii) ALL COSTS AND EXPENSES RELATED TO THE TRANSFER AND DELIVERY OF THE
SERIES A NOTES TO THE INITIAL PURCHASERS AND PURSUANT TO EXEMPT RESALES,
INCLUDING ANY TRANSFER OR OTHER TAXES PAYABLE THEREON, (iii) ALL COSTS OF
PRINTING OR PRODUCING THIS AGREEMENT, THE OTHER OPERATIVE DOCUMENTS AND ANY
OTHER AGREEMENTS OR DOCUMENTS IN CONNECTION WITH THE OFFERING, PURCHASE, SALE OR
DELIVERY OF THE SERIES A NOTES, (iv) ALL EXPENSES IN CONNECTION WITH THE
REGISTRATION OR QUALIFICATION OF THE SERIES A NOTES AND THE SUBSIDIARY
GUARANTEES FOR OFFER AND SALE UNDER THE SECURITIES OR BLUE SKY LAWS OF THE
SEVERAL STATES AND ALL COSTS OF PRINTING OR PRODUCING ANY PRELIMINARY AND
SUPPLEMENTAL BLUE SKY MEMORANDA IN CONNECTION THEREWITH (INCLUDING THE FILING
FEES AND FEES AND DISBURSEMENTS OF COUNSEL FOR THE INITIAL PURCHASERS IN
CONNECTION WITH SUCH REGISTRATION OR QUALIFICATION AND MEMORANDA RELATING
THERETO), (v) THE COST OF PRINTING CERTIFICATES REPRESENTING THE SERIES A NOTES
AND THE SUBSIDIARY GUARANTEES, (vi) ALL EXPENSES AND LISTING FEES IN CONNECTION
WITH THE APPLICATION FOR QUOTATION OF THE SERIES A NOTES IN THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC. ("NASD") AUTOMATED QUOTATION SYSTEM -
PORTAL ("PORTAL"), (vii) THE FEES AND EXPENSES OF THE TRUSTEE AND THE TRUSTEE'S
COUNSEL IN CONNECTION WITH THE INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES, (viii) THE COSTS AND CHARGES OF ANY TRANSFER AGENT, REGISTRAR AND/OR
DEPOSITARY (INCLUDING DTC), (ix) ANY FEES CHARGED BY RATING AGENCIES FOR THE
RATING OF THE NOTES, (x) ALL COSTS AND EXPENSES OF THE EXCHANGE OFFER AND ANY
REGISTRATION STATEMENT, AS SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT, AND
(xi) AND ALL OTHER COSTS AND EXPENSES INCIDENT TO THE PERFORMANCE OF THE
OBLIGATIONS OF THE COMPANY AND THE GUARANTORS HEREUNDER FOR WHICH PROVISION IS
NOT OTHERWISE MADE IN THIS SECTION.
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h. TO USE ITS BEST EFFORTS TO EFFECT THE INCLUSION OF THE
SERIES A NOTES IN PORTAL AND TO MAINTAIN THE LISTING OF THE SERIES A NOTES ON
PORTAL FOR SO LONG AS THE SERIES A NOTES ARE OUTSTANDING.
i. TO OBTAIN THE APPROVAL OF DTC FOR "BOOK-ENTRY" TRANSFER OF
THE NOTES, AND TO COMPLY WITH ALL OF ITS AGREEMENTS SET FORTH IN THE
REPRESENTATION LETTERS OF THE COMPANY AND THE GUARANTORS TO DTC RELATING TO THE
APPROVAL OF THE NOTES BY DTC FOR "BOOK-ENTRY" TRANSFER.
j. DURING THE PERIOD BEGINNING ON THE DATE HEREOF AND
CONTINUING TO AND INCLUDING THE CLOSING DATE, NOT TO OFFER, SELL, CONTRACT TO
SELL OR OTHERWISE TRANSFER OR DISPOSE OF ANY DEBT SECURITIES OF THE COMPANY OR
ANY GUARANTOR OR ANY WARRANTS, RIGHTS OR OPTIONS TO PURCHASE OR OTHERWISE
ACQUIRE DEBT SECURITIES OF THE COMPANY OR ANY GUARANTOR SUBSTANTIALLY SIMILAR TO
THE NOTES AND THE SUBSIDIARY GUARANTEES (OTHER THAN (i) THE NOTES AND THE
SUBSIDIARY GUARANTEES AND (ii) COMMERCIAL PAPER ISSUED IN THE ORDINARY COURSE OF
BUSINESS), WITHOUT THE PRIOR WRITTEN CONSENT OF THE INITIAL PURCHASERS.
k. NOT TO SELL, OFFER FOR SALE OR SOLICIT OFFERS TO BUY OR
OTHERWISE NEGOTIATE IN RESPECT OF ANY SECURITY (AS DEFINED IN THE ACT) THAT
WOULD BE INTEGRATED WITH THE SALE OF THE SERIES A NOTES TO THE INITIAL
PURCHASERS OR PURSUANT TO EXEMPT RESALES IN A MANNER THAT WOULD REQUIRE THE
REGISTRATION OF ANY SUCH SALE OF THE SERIES A NOTES UNDER THE ACT.
l. NOT TO VOLUNTARILY CLAIM, AND TO ACTIVELY RESIST ANY
ATTEMPTS TO CLAIM, THE BENEFIT OF ANY USURY LAWS AGAINST THE HOLDERS OF ANY
NOTES AND THE RELATED SUBSIDIARY GUARANTEES.
m. TO COMPLY WITH ALL OF ITS AGREEMENTS SET FORTH IN THE
REGISTRATION RIGHTS AGREEMENT.
n. TO USE ITS BEST EFFORTS TO DO AND PERFORM ALL THINGS
REQUIRED OR NECESSARY TO BE DONE AND PERFORMED UNDER THIS AGREEMENT BY IT PRIOR
TO THE CLOSING DATE AND TO SATISFY ALL CONDITIONS PRECEDENT TO THE DELIVERY OF
THE SERIES A NOTES AND THE SUBSIDIARY GUARANTEES.
0. 0. 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND
THE GUARANTORS.
AS OF THE DATE HEREOF, EACH OF THE COMPANY AND THE GUARANTORS
REPRESENTS AND WARRANTS TO, AND AGREES WITH, THE INITIAL PURCHASERS THAT:
a. THE PRELIMINARY OFFERING MEMORANDUM AND THE OFFERING
MEMORANDUM DO NOT, AND ANY SUPPLEMENT OR AMENDMENT TO THEM WILL NOT, CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT REQUIRED
TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING, EXCEPT THAT THE
REPRESENTATIONS AND WARRANTIES
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CONTAINED IN THIS PARAGRAPH (a) SHALL NOT APPLY TO STATEMENTS IN OR OMISSIONS
FROM THE PRELIMINARY OFFERING MEMORANDUM OR THE OFFERING MEMORANDUM (OR ANY
SUPPLEMENT OR AMENDMENT THERETO) BASED UPON INFORMATION RELATING TO THE INITIAL
PURCHASERS FURNISHED TO THE COMPANY IN WRITING BY THE INITIAL PURCHASERS
EXPRESSLY FOR USE THEREIN. NO STOP ORDER PREVENTING THE USE OF THE PRELIMINARY
OFFERING MEMORANDUM OR THE OFFERING MEMORANDUM, OR ANY AMENDMENT OR SUPPLEMENT
THERETO, OR ANY ORDER ASSERTING THAT ANY OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT ARE SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT, HAS BEEN
ISSUED.
b. EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS BEEN DULY
INCORPORATED, IS VALIDLY EXISTING AS A CORPORATION IN GOOD STANDING UNDER THE
LAWS OF ITS JURISDICTION OF INCORPORATION AND HAS THE CORPORATE POWER AND
AUTHORITY TO CARRY ON ITS BUSINESS AS DESCRIBED IN THE PRELIMINARY OFFERING
MEMORANDUM AND THE OFFERING MEMORANDUM AND TO OWN, LEASE AND OPERATE ITS
PROPERTIES, AND EACH IS DULY QUALIFIED AND IS IN GOOD STANDING AS A FOREIGN
CORPORATION AUTHORIZED TO DO BUSINESS IN EACH JURISDICTION IN WHICH THE NATURE
OF ITS BUSINESS OR ITS OWNERSHIP OR LEASING OF PROPERTY REQUIRES SUCH
QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE BUSINESS, PROSPECTS, FINANCIAL CONDITION OR
RESULTS OF OPERATIONS OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE (A
"MATERIAL ADVERSE EFFECT").
c. ALL OUTSTANDING SHARES OF CAPITAL STOCK OF THE COMPANY HAVE
BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND
NOT SUBJECT TO ANY PREEMPTIVE OR SIMILAR RIGHTS.
d. THE ENTITIES LISTED ON SCHEDULE A HERETO ARE THE ONLY
SUBSIDIARIES, DIRECT OR INDIRECT, OF THE COMPANY. ALL OF THE OUTSTANDING SHARES
OF CAPITAL STOCK OF EACH OF THE COMPANY'S SUBSIDIARIES HAVE BEEN DULY AUTHORIZED
AND VALIDLY ISSUED AND ARE FULLY PAID AND NON-ASSESSABLE, AND ARE OWNED BY THE
COMPANY, DIRECTLY OR INDIRECTLY, THROUGH ONE OR MORE SUBSIDIARIES, FREE AND
CLEAR OF ANY SECURITY INTEREST, CLAIM, LIEN, ENCUMBRANCE OR ADVERSE INTEREST OF
ANY NATURE (EACH, A "LIEN").
e. THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND
DELIVERED BY THE COMPANY AND EACH OF THE GUARANTORS.
f. THE INDENTURE HAS BEEN DULY AUTHORIZED BY THE COMPANY AND
EACH OF THE GUARANTORS AND, ON THE CLOSING DATE, WILL HAVE BEEN VALIDLY EXECUTED
AND DELIVERED BY THE COMPANY AND EACH OF THE GUARANTORS. WHEN THE INDENTURE HAS
BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND EACH OF THE GUARANTORS, THE
INDENTURE WILL BE A VALID AND BINDING AGREEMENT OF THE COMPANY AND EACH
GUARANTOR, ENFORCEABLE AGAINST THE COMPANY AND EACH GUARANTOR IN ACCORDANCE WITH
ITS TERMS EXCEPT AS (i) THE ENFORCEABILITY THEREOF MAY BE LIMITED BY BANKRUPTCY,
INSOLVENCY OR SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND (ii) RIGHTS
OF ACCELERATION AND THE AVAILABILITY OF EQUITABLE REMEDIES MAY BE LIMITED BY
EQUITABLE PRINCIPLES OF GENERAL APPLICABILITY. ON THE CLOSING DATE, THE
INDENTURE WILL CONFORM IN ALL MATERIAL RESPECTS TO THE REQUIREMENTS OF THE TRUST
INDENTURE ACT OF 1939, AS AMENDED (THE "TIA" OR "TRUST INDENTURE ACT"), AND THE
RULES AND REGULATIONS OF THE COMMISSION APPLICABLE TO AN INDENTURE WHICH IS
QUALIFIED THEREUNDER.
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g. THE SERIES A NOTES HAVE BEEN DULY AUTHORIZED AND, ON THE
CLOSING DATE, WILL HAVE BEEN VALIDLY EXECUTED AND DELIVERED BY THE COMPANY. WHEN
THE SERIES A NOTES HAVE BEEN ISSUED, EXECUTED AND AUTHENTICATED IN ACCORDANCE
WITH THE PROVISIONS OF THE INDENTURE AND DELIVERED TO AND PAID FOR BY THE
INITIAL PURCHASERS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THE SERIES A
NOTES WILL BE ENTITLED TO THE BENEFITS OF THE INDENTURE AND WILL BE VALID AND
BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS
EXCEPT AS (i) THE ENFORCEABILITY THEREOF MAY BE LIMITED BY BANKRUPTCY,
INSOLVENCY OR SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND (ii) RIGHTS
OF ACCELERATION AND THE AVAILABILITY OF EQUITABLE REMEDIES MAY BE LIMITED BY
EQUITABLE PRINCIPLES OF GENERAL APPLICABILITY. ON THE CLOSING DATE, THE SERIES A
NOTES WILL CONFORM AS TO LEGAL MATTERS TO THE DESCRIPTION THEREOF CONTAINED IN
THE OFFERING MEMORANDUM.
h. ON THE CLOSING DATE, THE SERIES B NOTES WILL HAVE BEEN DULY
AUTHORIZED BY THE COMPANY. WHEN THE SERIES B NOTES ARE ISSUED, EXECUTED AND
AUTHENTICATED IN ACCORDANCE WITH THE TERMS OF THE EXCHANGE OFFER AND THE
INDENTURE, THE SERIES B NOTES WILL BE ENTITLED TO THE BENEFITS OF THE INDENTURE
AND WILL BE THE VALID AND BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS (i) THE
ENFORCEABILITY THEREOF MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY OR SIMILAR LAWS
AFFECTING CREDITORS' RIGHTS GENERALLY AND (ii) RIGHTS OF ACCELERATION AND THE
AVAILABILITY OF EQUITABLE REMEDIES MAY BE LIMITED BY EQUITABLE PRINCIPLES OF
GENERAL APPLICABILITY.
i. THE SUBSIDIARY GUARANTEE TO BE ENDORSED ON THE SERIES A
NOTES BY EACH GUARANTOR HAS BEEN DULY AUTHORIZED BY SUCH GUARANTOR AND, ON THE
CLOSING DATE, WILL HAVE BEEN DULY EXECUTED AND DELIVERED BY EACH SUCH GUARANTOR.
WHEN THE SERIES A NOTES HAVE BEEN ISSUED, EXECUTED AND AUTHENTICATED IN
ACCORDANCE WITH THE INDENTURE AND DELIVERED TO AND PAID FOR BY THE INITIAL
PURCHASERS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THE SUBSIDIARY
GUARANTEE OF EACH GUARANTOR ENDORSED THEREON WILL BE ENTITLED TO THE BENEFITS OF
THE INDENTURE AND WILL BE THE VALID AND BINDING OBLIGATION OF SUCH GUARANTOR,
ENFORCEABLE AGAINST SUCH GUARANTOR IN ACCORDANCE WITH ITS TERMS, EXCEPT AS (i)
THE ENFORCEABILITY THEREOF MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY OR SIMILAR
LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND (ii) RIGHTS OF ACCELERATION AND
THE AVAILABILITY OF EQUITABLE REMEDIES MAY BE LIMITED BY EQUITABLE PRINCIPLES OF
GENERAL APPLICABILITY. ON THE CLOSING DATE, THE SUBSIDIARY GUARANTEES TO BE
ENDORSED ON THE SERIES A NOTES WILL CONFORM AS TO LEGAL MATTERS TO THE
DESCRIPTION THEREOF CONTAINED IN THE OFFERING MEMORANDUM.
j. THE SUBSIDIARY GUARANTEE TO BE ENDORSED ON THE SERIES B
NOTES BY EACH GUARANTOR HAS BEEN DULY AUTHORIZED BY EACH GUARANTOR AND, WHEN
ISSUED, WILL HAVE BEEN DULY EXECUTED AND DELIVERED BY EACH SUCH GUARANTOR. WHEN
THE SERIES B NOTES HAVE BEEN ISSUED, EXECUTED AND AUTHENTICATED IN ACCORDANCE
WITH THE TERMS OF THE EXCHANGE OFFER AND THE INDENTURE, THE SUBSIDIARY GUARANTEE
OF EACH GUARANTOR ENDORSED THEREON WILL BE ENTITLED TO THE BENEFITS OF THE
INDENTURE AND WILL BE THE VALID AND BINDING OBLIGATION OF SUCH GUARANTOR,
ENFORCEABLE AGAINST SUCH GUARANTOR IN ACCORDANCE WITH ITS TERMS, EXCEPT AS (i)
THE ENFORCEABILITY THEREOF MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY OR SIMILAR
LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND (ii) RIGHTS OF ACCELERATION AND
THE AVAILABILITY OF EQUITABLE
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REMEDIES MAY BE LIMITED BY EQUITABLE PRINCIPLES OF GENERAL APPLICABILITY. WHEN
THE SERIES B NOTES ARE ISSUED, AUTHENTICATED AND DELIVERED, THE SUBSIDIARY
GUARANTEES TO BE ENDORSED ON THE SERIES B NOTES WILL CONFORM AS TO LEGAL MATTERS
TO THE DESCRIPTION THEREOF IN THE OFFERING MEMORANDUM.
k. THE REGISTRATION RIGHTS AGREEMENT HAS BEEN DULY AUTHORIZED
BY THE COMPANY AND EACH OF THE GUARANTORS AND, ON THE CLOSING DATE, WILL HAVE
BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND EACH OF THE GUARANTORS. WHEN
THE REGISTRATION RIGHTS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED, THE
REGISTRATION RIGHTS AGREEMENT WILL BE A VALID AND BINDING AGREEMENT OF THE
COMPANY AND EACH OF THE GUARANTORS, ENFORCEABLE AGAINST THE COMPANY AND EACH
GUARANTOR IN ACCORDANCE WITH ITS TERMS EXCEPT AS (i) THE ENFORCEABILITY THEREOF
MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY OR SIMILAR LAWS AFFECTING CREDITORS'
RIGHTS GENERALLY AND (ii) RIGHTS OF ACCELERATION AND THE AVAILABILITY OF
EQUITABLE REMEDIES MAY BE LIMITED BY EQUITABLE PRINCIPLES OF GENERAL
APPLICABILITY. ON THE CLOSING DATE, THE REGISTRATION RIGHTS AGREEMENT WILL
CONFORM AS TO LEGAL MATTERS TO THE DESCRIPTION THEREOF IN THE OFFERING
MEMORANDUM.
l. NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES IS IN
VIOLATION OF ITS RESPECTIVE CHARTER OR BY-LAWS OR IN DEFAULT IN THE PERFORMANCE
OF ANY OBLIGATION, AGREEMENT, COVENANT OR CONDITION CONTAINED IN ANY INDENTURE,
LOAN AGREEMENT, MORTGAGE, LEASE OR OTHER AGREEMENT OR INSTRUMENT, TO WHICH THE
COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY OR BY WHICH THE COMPANY OR ANY OF
ITS SUBSIDIARIES OR THEIR RESPECTIVE PROPERTY IS BOUND, EXCEPT FOR ANY DEFAULTS
UNDER SUCH INDENTURE, LOAN AGREEMENT, MORTGAGE, LEASE OR OTHER AGREEMENT OR
INSTRUMENT THAT COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
m. THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
AND THE OTHER OPERATIVE DOCUMENTS BY THE COMPANY AND EACH OF THE GUARANTORS,
COMPLIANCE BY THE COMPANY AND EACH OF THE GUARANTORS WITH ALL PROVISIONS HEREOF
AND THEREOF AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY WILL NOT (i) REQUIRE ANY CONSENT, APPROVAL, AUTHORIZATION OR OTHER ORDER
OF, OR QUALIFICATION WITH, ANY COURT OR GOVERNMENTAL BODY OR AGENCY (EXCEPT SUCH
AS MAY BE REQUIRED UNDER THE SECURITIES OR BLUE SKY LAWS OF THE VARIOUS STATES),
(ii) CONFLICT WITH OR CONSTITUTE A BREACH OF ANY OF THE TERMS OR PROVISIONS OF,
OR A DEFAULT UNDER, (a) THE CHARTER OR BY-LAWS OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR (b) ANY INDENTURE, LOAN AGREEMENT, MORTGAGE, LEASE OR OTHER
AGREEMENT OR INSTRUMENT THAT IS MATERIAL TO THE COMPANY AND ITS SUBSIDIARIES,
TAKEN AS A WHOLE, TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY OR
BY WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES OR THEIR RESPECTIVE PROPERTY IS
BOUND, (iii) VIOLATE OR CONFLICT WITH ANY APPLICABLE LAW OR ANY RULE,
REGULATION, JUDGMENT, ORDER OR DECREE OF ANY COURT OR ANY GOVERNMENTAL BODY OR
AGENCY HAVING JURISDICTION OVER THE COMPANY, ANY OF ITS SUBSIDIARIES OR THEIR
RESPECTIVE PROPERTY, (iv) RESULT IN THE IMPOSITION OR CREATION OF (OR THE
OBLIGATION TO CREATE OR IMPOSE) A LIEN UNDER, ANY AGREEMENT OR INSTRUMENT TO
WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY OR BY WHICH THE COMPANY
OR ANY OF ITS SUBSIDIARIES OR THEIR RESPECTIVE PROPERTY IS BOUND, OR (v) RESULT
IN THE TERMINATION, SUSPENSION OR REVOCATION OF ANY AUTHORIZATION (AS DEFINED
BELOW) OF THE COMPANY OR ANY OF ITS SUBSIDIARIES RESULT IN ANY OTHER IMPAIRMENT
OF THE
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RIGHTS OF THE HOLDER OF ANY SUCH AUTHORIZATION, EXCEPT IN THE CASE OF THE
FOREGOING CLAUSES (i), (ii)(B), (iii), (iv) AND (v) FOR SUCH VIOLATIONS OR
DEFAULTS WHICH, SINGLY OR IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
n. THERE ARE NO LEGAL OR GOVERNMENTAL PROCEEDINGS PENDING OR
TO THE COMPANY'S KNOWLEDGE THREATENED TO WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES IS OR TO THE COMPANY'S KNOWLEDGE COULD BE A PARTY OR TO WHICH ANY
OF THEIR RESPECTIVE PROPERTY IS OR TO THE COMPANY'S KNOWLEDGE COULD BE SUBJECT,
WHICH MIGHT RESULT, SINGLY OR IN THE AGGREGATE, IN A MATERIAL ADVERSE EFFECT.
o. NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS
VIOLATED ANY FOREIGN, FEDERAL, STATE OR LOCAL LAW OR REGULATION RELATING TO THE
PROTECTION OF HUMAN HEALTH AND SAFETY, THE ENVIRONMENT OR HAZARDOUS OR TOXIC
SUBSTANCES OR WASTES, POLLUTANTS OR CONTAMINANTS ("ENVIRONMENTAL LAWS"), ANY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR ANY PROVISIONS OF THE FOREIGN CORRUPT PRACTICES ACT OR THE RULES
AND REGULATIONS PROMULGATED THEREUNDER, EXCEPT FOR SUCH VIOLATIONS WHICH, SINGLY
OR IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
p. EXCEPT AS SET FORTH IN THE OFFERING MEMORANDUM OR EXCEPT
FOR SUCH VIOLATIONS WHICH, SINGLY OR IN THE AGGREGATE, COULD NOT REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, TO THE COMPANY'S KNOWLEDGE,
NEITHER THE COMPANY NOR ANY OF THE GUARANTORS HAS VIOLATED ANY FEDERAL, STATE OR
LOCAL STATUTES, RULES OR REGULATIONS GOVERNING THE OWNERSHIP OR OPERATION OF
PHYSICIAN-STAFFING COMPANIES OR ANY OTHER HEALTH CARE RELATED STATUTES, RULES OR
REGULATIONS. EXCEPT FOR SUCH VIOLATIONS WHICH, SINGLY OR IN THE AGGREGATE, COULD
NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, TO THE
COMPANY'S KNOWLEDGE, NEITHER THE COMPANY NOR ANY OF THE GUARANTORS HAS ENGAGED
IN A PATTERN OR PRACTICE OF MAKING PAYMENTS INTENDED TO OBTAIN OR INDUCE PATIENT
REFERRALS FOR ANY OF THEIR OPERATIONS.
q. THERE ARE NO COSTS OR LIABILITIES ASSOCIATED WITH
ENVIRONMENTAL LAWS (INCLUDING, WITHOUT LIMITATION, ANY CAPITAL OR OPERATING
EXPENDITURES REQUIRED FOR CLEAN-UP, CLOSURE OF PROPERTIES OR COMPLIANCE WITH
ENVIRONMENTAL LAWS OR ANY AUTHORIZATION, ANY RELATED CONSTRAINTS ON OPERATING
ACTIVITIES AND ANY POTENTIAL LIABILITIES TO THIRD PARTIES) WHICH, SINGLY OR IN
THE AGGREGATE, COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
r. EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS SUCH PERMITS,
LICENSES, CONSENTS, EXEMPTIONS, FRANCHISES, AUTHORIZATIONS AND OTHER APPROVALS
(EACH, AN "AUTHORIZATION") OF, AND HAS MADE ALL FILINGS WITH AND NOTICES TO, ALL
GOVERNMENTAL OR REGULATORY AUTHORITIES AND SELF-REGULATORY ORGANIZATIONS AND ALL
COURTS AND OTHER TRIBUNALS, INCLUDING WITHOUT LIMITATION, UNDER ANY APPLICABLE
ENVIRONMENTAL LAWS, AS ARE NECESSARY TO OWN, LEASE, LICENSE AND OPERATE ITS
RESPECTIVE PROPERTIES AND TO CONDUCT ITS BUSINESS, EXCEPT WHERE THE FAILURE TO
HAVE ANY SUCH AUTHORIZATION OR TO MAKE ANY SUCH FILING OR NOTICE COULD
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13
NOT REASONABLY BE EXPECTED TO, SINGLY OR IN THE AGGREGATE, HAVE A MATERIAL
ADVERSE EFFECT. EACH SUCH AUTHORIZATION IS VALID AND IN FULL FORCE AND EFFECT
AND EACH OF THE COMPANY AND ITS SUBSIDIARIES IS IN COMPLIANCE WITH ALL THE TERMS
AND CONDITIONS THEREOF AND WITH THE RULES AND REGULATIONS OF THE AUTHORITIES AND
GOVERNING BODIES HAVING JURISDICTION WITH RESPECT THERETO; AND NO EVENT HAS
OCCURRED (INCLUDING, WITHOUT LIMITATION, THE RECEIPT OF ANY NOTICE FROM ANY
AUTHORITY OR GOVERNING BODY) WHICH ALLOWS OR, AFTER NOTICE OR LAPSE OF TIME OR
BOTH, WOULD ALLOW, REVOCATION, SUSPENSION OR TERMINATION OF ANY SUCH
AUTHORIZATION OR RESULTS OR, AFTER NOTICE OR LAPSE OF TIME OR BOTH, WOULD RESULT
IN ANY OTHER IMPAIRMENT OF THE RIGHTS OF THE HOLDER OF ANY SUCH AUTHORIZATION;
EXCEPT WHERE SUCH FAILURE TO BE VALID AND IN FULL FORCE AND EFFECT OR TO BE IN
COMPLIANCE, THE OCCURRENCE OF ANY SUCH EVENT COULD NOT REASONABLY BE EXPECTED
TO, SINGLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT.
s. THE ACCOUNTANTS, ERNST & YOUNG LLP, THAT HAVE CERTIFIED THE
FINANCIAL STATEMENTS AND RELATED NOTES INCLUDED IN THE PRELIMINARY OFFERING
MEMORANDUM AND THE OFFERING MEMORANDUM ARE INDEPENDENT PUBLIC ACCOUNTANTS WITH
RESPECT TO THE COMPANY AND THE GUARANTORS, AS REQUIRED BY THE ACT AND THE
EXCHANGE ACT. THE HISTORICAL FINANCIAL STATEMENTS, TOGETHER WITH RELATED NOTES,
SET FORTH IN THE PRELIMINARY OFFERING MEMORANDUM AND THE OFFERING MEMORANDUM
COMPLY AS TO FORM IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS APPLICABLE TO
REGISTRATION STATEMENTS ON FORM S-1 UNDER THE ACT.
t. THE HISTORICAL FINANCIAL STATEMENTS, TOGETHER WITH RELATED
NOTES FORMING PART OF THE OFFERING MEMORANDUM (AND ANY AMENDMENT OR SUPPLEMENT
THERETO), PRESENT FAIRLY THE CONSOLIDATED FINANCIAL POSITION, RESULTS OF
OPERATIONS AND CHANGES IN FINANCIAL POSITION OF THE COMPANY AND ITS SUBSIDIARIES
ON THE BASIS STATED IN THE OFFERING MEMORANDUM AT THE RESPECTIVE DATES OR FOR
THE RESPECTIVE PERIODS TO WHICH THEY APPLY; SUCH STATEMENTS AND RELATED NOTES
HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
CONSISTENTLY APPLIED THROUGHOUT THE PERIODS INVOLVED, EXCEPT AS DISCLOSED
THEREIN; AND THE OTHER FINANCIAL AND STATISTICAL INFORMATION AND DATA SET FORTH
IN THE OFFERING MEMORANDUM (AND ANY AMENDMENT OR SUPPLEMENT THERETO) ARE, IN ALL
MATERIAL RESPECTS, ACCURATELY PRESENTED AND PREPARED ON A BASIS CONSISTENT WITH
SUCH FINANCIAL STATEMENTS AND THE BOOKS AND RECORDS OF THE COMPANY.
u. THE PRO FORMA FINANCIAL STATEMENTS AND THE RELATED NOTES
INCLUDED IN THE PRELIMINARY OFFERING MEMORANDUM AND THE OFFERING MEMORANDUM HAVE
BEEN PREPARED ON A BASIS CONSISTENT WITH THE HISTORICAL FINANCIAL STATEMENTS OF
THE COMPANY AND ITS SUBSIDIARIES AND GIVE EFFECT TO ASSUMPTIONS USED IN THE
PREPARATION THEREOF ON A REASONABLE BASIS AND IN GOOD FAITH AND PRESENT FAIRLY
THE PROPOSED TRANSACTIONS CONTEMPLATED BY THE PRELIMINARY OFFERING MEMORANDUM
AND THE OFFERING MEMORANDUM; AND SUCH PRO FORMA FINANCIAL STATEMENTS COMPLY AS
TO FORM IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS APPLICABLE TO PRO FORMA
FINANCIAL STATEMENTS INCLUDED IN REGISTRATION STATEMENTS ON FORM S-1 UNDER THE
ACT. THE OTHER PRO FORMA FINANCIAL AND STATISTICAL INFORMATION AND DATA INCLUDED
IN THE OFFERING MEMORANDUM ARE, IN ALL MATERIAL RESPECTS, ACCURATELY PRESENTED
AND PREPARED ON A BASIS CONSISTENT WITH THE PRO FORMA FINANCIAL STATEMENTS.
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v. THE COMPANY IS NOT AND, AFTER GIVING EFFECT TO THE OFFERING
AND SALE OF THE SERIES A NOTES AND THE APPLICATION OF THE NET PROCEEDS THEREOF
AS DESCRIBED IN THE OFFERING MEMORANDUM, WILL NOT BE, AN "INVESTMENT COMPANY,"
AS SUCH TERM IS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
w. EXCEPT AS SET FORTH IN THE OFFERING MEMORANDUM, THERE ARE
NO CONTRACTS, AGREEMENTS OR UNDERSTANDINGS BETWEEN THE COMPANY AND ANY PERSON
GRANTING SUCH PERSON THE RIGHT TO REQUIRE THE COMPANY TO FILE A REGISTRATION
STATEMENT UNDER THE ACT WITH RESPECT TO ANY SECURITIES OF THE COMPANY OR TO
REQUIRE THE COMPANY TO INCLUDE SUCH SECURITIES WITH THE NOTES AND SUBSIDIARY
GUARANTEES REGISTERED PURSUANT TO ANY REGISTRATION STATEMENT.
x. NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES NOR ANY
AGENT THEREOF ACTING ON THE BEHALF OF THEM HAS TAKEN, AND NONE OF THEM WILL
TAKE, ANY ACTION THAT MIGHT CAUSE THIS AGREEMENT OR THE ISSUANCE OR SALE OF THE
SERIES A NOTES TO VIOLATE REGULATION G (12 C.F.R. PART 207), REGULATION T (12
C.F.R. PART 220), REGULATION U (12 C.F.R. PART 221) OR REGULATION X (12 C.F.R.
PART 224) OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM.
y. NO "NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION"
AS SUCH TERM IS DEFINED FOR PURPOSES OF RULE 436(G)(2) UNDER THE ACT (i) HAS
IMPOSED (OR HAS INFORMED THE COMPANY OR ANY GUARANTOR THAT IT IS CONSIDERING
IMPOSING) ANY CONDITION (FINANCIAL OR OTHERWISE) ON THE COMPANY'S OR ANY
GUARANTOR'S RETAINING ANY RATING ASSIGNED TO THE COMPANY OR ANY GUARANTOR, ANY
SECURITIES OF THE COMPANY OR ANY GUARANTOR OR (ii) HAS INDICATED TO THE COMPANY
OR ANY GUARANTOR THAT IT IS CONSIDERING (a) THE DOWNGRADING, SUSPENSION, OR
WITHDRAWAL OF, OR ANY REVIEW FOR A POSSIBLE CHANGE THAT DOES NOT INDICATE THE
DIRECTION OF THE POSSIBLE CHANGE IN, ANY RATING SO ASSIGNED OR (b) ANY CHANGE IN
THE OUTLOOK FOR ANY RATING OF THE COMPANY OR ANY GUARANTOR OR ANY SECURITIES OF
THE COMPANY OR ANY GUARANTOR.
z. SINCE THE RESPECTIVE DATES AS OF WHICH INFORMATION IS GIVEN
IN THE OFFERING MEMORANDUM OTHER THAN AS SET FORTH IN THE OFFERING MEMORANDUM
(EXCLUSIVE OF ANY AMENDMENTS OR SUPPLEMENTS THERETO SUBSEQUENT TO THE DATE OF
THIS AGREEMENT), (i) THERE HAS NOT OCCURRED ANY MATERIAL ADVERSE CHANGE OR ANY
DEVELOPMENT INVOLVING A PROSPECTIVE MATERIAL ADVERSE CHANGE IN THE CONDITION,
FINANCIAL OR OTHERWISE, OR THE EARNINGS, BUSINESS, MANAGEMENT OR OPERATIONS OF
THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, (ii) THERE HAS NOT BEEN ANY
MATERIAL ADVERSE CHANGE OR ANY DEVELOPMENT INVOLVING A PROSPECTIVE MATERIAL
ADVERSE CHANGE IN THE CAPITAL STOCK OR IN THE LONG-TERM DEBT OF THE COMPANY OR
ANY OF ITS SUBSIDIARIES AND (iii) NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES HAS INCURRED ANY MATERIAL LIABILITY OR OBLIGATION, DIRECT OR
CONTINGENT.
aa. EACH OF THE PRELIMINARY OFFERING MEMORANDUM AND THE
OFFERING MEMORANDUM, AS OF ITS DATE, CONTAINS ALL THE INFORMATION SPECIFIED IN,
AND MEETING THE REQUIREMENTS OF, RULE 144A(d)(4) UNDER THE ACT.
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bb. WHEN THE SERIES A NOTES AND THE SUBSIDIARY GUARANTEES ARE
ISSUED AND DELIVERED PURSUANT TO THIS AGREEMENT, NEITHER THE SERIES A NOTES NOR
THE SUBSIDIARY GUARANTEES WILL BE OF THE SAME CLASS (WITHIN THE MEANING OF RULE
144A UNDER THE ACT) AS ANY SECURITY OF THE COMPANY OR THE GUARANTORS THAT IS
LISTED ON A NATIONAL SECURITIES EXCHANGE REGISTERED UNDER SECTION 6 OF THE
EXCHANGE ACT OR THAT IS QUOTED IN A UNITED STATES AUTOMATED INTER-DEALER
QUOTATION SYSTEM.
cc. NO FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING (AS
DEFINED IN REGULATION D UNDER THE ACT) WAS USED BY THE COMPANY, THE GUARANTORS
OR ANY OF THEIR RESPECTIVE REPRESENTATIVES (OTHER THAN THE INITIAL PURCHASERS,
AS TO WHOM THE COMPANY AND THE GUARANTORS MAKE NO REPRESENTATION) IN CONNECTION
WITH THE OFFER AND SALE OF THE SERIES A NOTES CONTEMPLATED HEREBY, INCLUDING,
BUT NOT LIMITED TO, ARTICLES, NOTICES OR OTHER COMMUNICATIONS PUBLISHED IN ANY
NEWSPAPER, MAGAZINE, OR SIMILAR MEDIUM OR BROADCAST OVER TELEVISION OR RADIO, OR
ANY SEMINAR OR MEETING WHOSE ATTENDEES HAVE BEEN INVITED BY ANY GENERAL
SOLICITATION OR GENERAL ADVERTISING. NO SECURITIES OF THE SAME CLASS AS THE
SERIES A NOTES HAVE BEEN ISSUED AND SOLD BY THE COMPANY WITHIN THE SIX-MONTH
PERIOD IMMEDIATELY PRIOR TO THE DATE HEREOF.
dd. PRIOR TO THE EFFECTIVENESS OF ANY REGISTRATION STATEMENT,
THE INDENTURE IS NOT REQUIRED TO BE QUALIFIED UNDER THE TIA.
ee. NO REGISTRATION UNDER THE ACT OF THE SERIES A NOTES OR THE
SUBSIDIARY GUARANTEES IS REQUIRED FOR THE SALE OF THE SERIES A NOTES AND THE
SUBSIDIARY GUARANTEES TO THE INITIAL PURCHASERS AS CONTEMPLATED HEREBY OR FOR
THE EXEMPT RESALES ASSUMING THE ACCURACY OF THE INITIAL PURCHASERS'
REPRESENTATIONS AND WARRANTIES AND AGREEMENTS SET FORTH IN SECTION 7 HEREOF.
ff. TO THE BEST OF THE COMPANY'S KNOWLEDGE NEITHER (A) THE
COMPANY, (B) ANY SUBSIDIARY OF THE COMPANY, NOR (C) ANY AFFILIATED ENTITY,
INCLUDING WITHOUT LIMITATION ANY PROFESSIONAL CORPORATION, PARTNERSHIP OR
ASSOCIATION, WITH WHICH THE COMPANY OR ANY SUBSIDIARY CONTRACTS AND THROUGH
WHICH SERVICES ARE PROVIDED (EACH A "GROUP MEMBER" OR COLLECTIVELY, THE "GROUP
MEMBERS") HAS RECEIVED ANY INDICATION OR NOTICE, WRITTEN OR ORAL, FROM
REPRESENTATIVES OF THE MEDICARE, MEDICAID OR CHAMPUS PROGRAMS (COLLECTIVELY, THE
"PROGRAMS") OR ANY OTHER FEDERAL OR STATE AGENCY THAT ANY OF THE GROUP MEMBERS'
AGREEMENTS OR ARRANGEMENTS ARE CONTRARY TO ANY FEDERAL OR STATE FRAUD AND ABUSE
LAWS OR REGULATIONS OR FEDERAL OR STATE SELF-REFERRAL LAWS OR REGULATIONS.
gg. ANY GROUP MEMBERS PROVIDING ITEMS AND SERVICES ARE
ELIGIBLE TO PARTICIPATE IN THE PROGRAMS.
hh. THE GROUP MEMBERS EMPLOY PERSONNEL FAMILIAR WITH THE
VARIOUS LAWS AND REGULATIONS GOVERNING REIMBURSEMENT UNDER THE PROGRAMS AND
CONDUCT PERIODIC AUDITS OF THE GROUP MEMBERS' BILLING AND COLLECTION PROCEDURES.
TO THE BEST OF THE COMPANY'S KNOWLEDGE, (i) EACH GROUP MEMBER IS IN SUBSTANTIAL
COMPLIANCE WITH THOSE LAWS AND REGULATIONS; AND (ii) EXCEPT AS OTHERWISE
INDICATED IN THE OFFERING MEMORANDUM, NO GROUP MEMBER HAS RECEIVED ANY
INDICATION OR NOTICE, WRITTEN OR ORAL, FROM REPRESENTATIVES OF
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THE PROGRAMS OR ANY OTHER FEDERAL OR STATE AGENCY THAT ANY OF THE GROUP MEMBERS'
BILLING PROCEDURES WILL BE AUDITED.
ii. TO THE BEST OF THE COMPANY'S KNOWLEDGE, THE GROUP MEMBERS
ARE IN COMPLIANCE WITH THE LAWS AND REGULATIONS PERTAINING TO (i) PHYSICIAN
LICENSURE AND (ii) PHYSICIAN FEE-SPLITTING IN ALL STATES IN WHICH THEY ARE
ORGANIZED AND OTHERWISE AUTHORIZED TO CONDUCT BUSINESS, AND ARE NOT ENGAGED,
EITHER DIRECTLY OR INDIRECTLY, IN EITHER THE UNAUTHORIZED OR UNLICENSED PRACTICE
OF MEDICINE OR IN PROHIBITED PHYSICIAN FEE-SPLITTING ARRANGEMENTS.
jj. TO THE BEST OF THE COMPANY'S KNOWLEDGE, THE GROUP MEMBERS
ARE IN SUBSTANTIAL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE CORPORATE
COMPLIANCE PROGRAM OF MEDPARTNERS, INC. TO BE ASSUMED BY THE COMPANY, EXCEPT
WHERE SUCH FAILURE TO BE IN COMPLIANCE, SINGLY OR IN THE AGGREGATE, COULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
kk. TO THE BEST OF THE COMPANY'S KNOWLEDGE, NO GROUP MEMBER,
OR ANY INDIVIDUAL OR BUSINESS ENTITY WITH WHICH A GROUP MEMBER CONTRACTS AND
THROUGH WHICH SERVICES ARE PROVIDED, HAS RECEIVED ANY INDICATION OR NOTICE,
WRITTEN OR ORAL, FROM REPRESENTATIVES OF THE UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES OR ANY OTHER FEDERAL OR STATE AGENCY OR ACCREDITING BODY
REGARDING ANY MATTERS, INCLUDING BUT NOT LIMITED TO THE REVOCATION, SUSPENSION,
TERMINATION OR MODIFICATION OF ANY APPLICABLE LICENSES, CERTIFICATIONS,
ACCREDITATIONS OR SUPPLIER NUMBERS, WHICH HAS HAD OR COULD HAVE WITH THE PASSAGE
OF TIME A MATERIAL ADVERSE EFFECT.
ll. FOR PURPOSES OF FINANCIAL REPORTING, THE COMPANY NEED NOT
MEET THE REQUIREMENTS OF FASB STATEMENT NO. 94 AND APB OPINION NO. 16, AS
INTERPRETED BY FASB EMERGING ISSUES TASK FORCE ISSUE NO. 97-2 ("EITF 97-2").
NOTWITHSTANDING THE FOREGOING, THE COMPANY MEETS THE REQUIREMENTS AS SET FORTH
IN EITF 97-2 WITH RESPECT TO ALL GROUP MEMBERS WHOSE FINANCIAL STATEMENTS ARE
CONSOLIDATED WITH THOSE OF THE COMPANY.
mm. THE AGREEMENTS LISTED ON SCHEDULE D HERETO REPRESENT ALL
OF THE MATERIAL AGREEMENTS OF THE COMPANY THAT WOULD BE REQUIRED TO BE FILED AS
EXHIBITS IF THE OFFERING WERE TO BE MADE PURSUANT TO A REGISTRATION STATEMENT ON
FORM S-1.
nn. EACH CERTIFICATE SIGNED BY ANY OFFICER OF THE COMPANY OR
ANY GUARANTOR AND DELIVERED TO THE INITIAL PURCHASERS OR COUNSEL FOR THE INITIAL
PURCHASERS SHALL BE DEEMED TO BE A REPRESENTATION AND WARRANTY BY THE COMPANY OR
SUCH GUARANTOR TO THE INITIAL PURCHASERS AS TO THE MATTERS COVERED THEREBY.
THE COMPANY ACKNOWLEDGES THAT THE INITIAL PURCHASERS AND, FOR PURPOSES
OF THE OPINIONS TO BE DELIVERED TO THE INITIAL PURCHASERS PURSUANT TO SECTION 9
HEREOF, COUNSEL TO THE COMPANY AND THE GUARANTORS AND COUNSEL TO THE INITIAL
PURCHASERS WILL RELY UPON THE ACCURACY AND TRUTH OF THE FOREGOING
REPRESENTATIONS AND HEREBY CONSENTS TO SUCH RELIANCE.
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0. 0. 1. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES.
EACH OF THE INITIAL PURCHASERS, SEVERALLY AND NOT JOINTLY, REPRESENTS
AND WARRANTS TO THE COMPANY AND THE GUARANTORS, AND AGREES THAT:
a. SUCH INITIAL PURCHASER IS EITHER A QIB OR AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a) (1), (2), (3) OR (7) UNDER THE ACT (AN
"ACCREDITED INSTITUTION"), IN EITHER CASE, WITH SUCH KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS AS IS NECESSARY IN ORDER TO EVALUATE THE MERITS
AND RISKS OF AN INVESTMENT IN THE SERIES A NOTES.
b. SUCH INITIAL PURCHASER (A) IS NOT ACQUIRING THE SERIES A
NOTES WITH A VIEW TO ANY DISTRIBUTION THEREOF OR WITH ANY PRESENT INTENTION OF
OFFERING OR SELLING ANY OF THE SERIES A NOTES IN A TRANSACTION THAT WOULD
VIOLATE THE ACT OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) WILL BE REOFFERING AND RESELLING THE
SERIES A NOTES ONLY TO QIBS IN RELIANCE ON THE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT PROVIDED BY RULE 144A.
c. SUCH INITIAL PURCHASER AGREES THAT NO FORM OF GENERAL
SOLICITATION OR GENERAL ADVERTISING (WITHIN THE MEANING OF REGULATION D UNDER
THE ACT) HAS BEEN OR WILL BE USED BY SUCH INITIAL PURCHASER OR ANY OF ITS
REPRESENTATIVES IN CONNECTION WITH THE OFFER AND SALE OF THE SERIES A NOTES
PURSUANT HERETO, INCLUDING, BUT NOT LIMITED TO, ARTICLES, NOTICES OR OTHER
COMMUNICATIONS PUBLISHED IN ANY NEWSPAPER, MAGAZINE OR SIMILAR MEDIUM OR
BROADCAST OVER TELEVISION OR RADIO, OR ANY SEMINAR OR MEETING WHOSE ATTENDEES
HAVE BEEN INVITED BY ANY GENERAL SOLICITATION OR GENERAL ADVERTISING.
d. SUCH INITIAL PURCHASER AGREES THAT, IN CONNECTION WITH
EXEMPT RESALES, SUCH INITIAL PURCHASER WILL SOLICIT OFFERS TO BUY THE SERIES A
NOTES ONLY FROM, AND WILL OFFER TO SELL THE SERIES A NOTES ONLY TO, ELIGIBLE
PURCHASERS. EACH OF THE INITIAL PURCHASERS FURTHER AGREES THAT IT WILL OFFER TO
SELL THE SERIES A NOTES ONLY TO, AND WILL SOLICIT OFFERS TO BUY THE SERIES A
NOTES ONLY FROM ELIGIBLE PURCHASERS THAT THE INITIAL PURCHASERS REASONABLY
BELIEVE ARE QIBs THAT AGREE THAT (i) THE SERIES A NOTES PURCHASED BY THEM MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE TIME PERIOD REFERRED TO
UNDER RULE 144(K) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE
ACT, IF APPLICABLE) UNDER THE ACT, AS IN EFFECT ON THE DATE OF THE TRANSFER OF
SUCH SERIES A NOTES, ONLY (I) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (ii) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A UNDER THE ACT, (III) IN AN OFFSHORE TRANSACTION (AS DEFINED IN RULE
902 UNDER THE ACT) MEETING THE REQUIREMENTS OF RULE 904 OF THE ACT, (IV) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (V) TO AN
ACCREDITED INSTITUTION THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
REGISTRATION OF TRANSFER OF SUCH SERIES A NOTES (THE FORM OF WHICH IS
SUBSTANTIALLY THE SAME AS EXHIBIT A TO THE INDENTURE) AND, IF SUCH TRANSFER IS
IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SERIES A NOTES LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE ACT, (VI) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT (AND BASED
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UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (VII) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (II) THEY WILL DELIVER TO EACH PERSON TO WHOM SUCH
SERIES A NOTES OR AN INTEREST THEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THE FOREGOING.
SUCH INITIAL PURCHASER ACKNOWLEDGES THAT THE COMPANY AND THE GUARANTORS
AND, FOR PURPOSES OF THE OPINIONS TO BE DELIVERED TO EACH INITIAL PURCHASER
PURSUANT TO SECTION 9 HEREOF, COUNSEL TO THE COMPANY AND THE GUARANTORS AND
COUNSEL TO THE INITIAL PURCHASERS WILL RELY UPON THE ACCURACY AND TRUTH OF THE
FOREGOING REPRESENTATIONS AND SUCH INITIAL PURCHASER HEREBY CONSENTS TO SUCH
RELIANCE.
0. 0. 1. INDEMNIFICATION.
a. THE COMPANY AND EACH OF THE GUARANTORS AGREE, JOINTLY AND
SEVERALLY, TO INDEMNIFY AND HOLD HARMLESS THE INITIAL PURCHASERS, THEIR
DIRECTORS, THEIR OFFICERS AND EACH PERSON, IF ANY, WHO CONTROLS SUCH INITIAL
PURCHASER WITHIN THE MEANING OF SECTION 15 OF THE ACT OR SECTION 20 OF THE
EXCHANGE ACT, FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES
AND JUDGMENTS (INCLUDING, WITHOUT LIMITATION, ANY LEGAL OR OTHER EXPENSES
INCURRED IN CONNECTION WITH INVESTIGATING OR DEFENDING ANY MATTER, INCLUDING ANY
ACTION, THAT COULD GIVE RISE TO ANY SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR
JUDGMENTS) CAUSED BY ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A
MATERIAL FACT CONTAINED IN THE OFFERING MEMORANDUM (OR ANY AMENDMENT OR
SUPPLEMENT THERETO), THE PRELIMINARY OFFERING MEMORANDUM OR ANY RULE 144A
INFORMATION PROVIDED BY THE COMPANY OR ANY GUARANTOR TO ANY HOLDER OR
PROSPECTIVE PURCHASER OF SERIES A NOTES PURSUANT TO SECTION 5(f) OR CAUSED BY
ANY OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE
STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING,
EXCEPT INSOFAR AS SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR JUDGMENTS ARE
CAUSED BY ANY SUCH UNTRUE STATEMENT OR OMISSION OR ALLEGED UNTRUE STATEMENT OR
OMISSION BASED UPON INFORMATION RELATING TO AN INITIAL PURCHASER FURNISHED IN
WRITING TO THE COMPANY BY SUCH INITIAL PURCHASER; PROVIDED, HOWEVER, THAT THE
FOREGOING INDEMNITY AGREEMENT WITH RESPECT TO ANY PRELIMINARY OFFERING
MEMORANDUM SHALL NOT INURE TO THE BENEFIT OF ANY INITIAL PURCHASER IF THEY
FAILED TO DELIVER A FINAL OFFERING MEMORANDUM, AS THEN AMENDED OR SUPPLEMENTED,
(SO LONG AS THE FINAL OFFERING MEMORANDUM AND ANY AMENDMENT OR SUPPLEMENT
THERETO WAS PROVIDED BY THE COMPANY TO THE SEVERAL INITIAL PURCHASERS IN THE
REQUISITE QUANTITY AND ON A TIMELY BASIS TO PERMIT PROPER DELIVERY ON OR PRIOR
TO THE CLOSING DATE) TO THE PERSON ASSERTING ANY LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR JUDGMENTS CAUSED BY ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT CONTAINED IN ANY PRELIMINARY OFFERING MEMORANDUM,
OR CAUSED BY ANY OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT
MISLEADING, IF SUCH MATERIAL MISSTATEMENT OR OMISSION OR ALLEGED MATERIAL
MISSTATEMENT OR OMISSION WAS CURED IN THE FINAL OFFERING MEMORANDUM, AS SO
AMENDED OR SUPPLEMENTED.
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b. EACH OF THE INITIAL PURCHASERS, SEVERALLY AND NOT JOINTLY,
AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY AND THE GUARANTORS, AND THEIR
RESPECTIVE DIRECTORS AND OFFICERS AND EACH PERSON, IF ANY, WHO CONTROLS (WITHIN
THE MEANING OF SECTION 15 OF THE ACT OR SECTION 20 OF THE EXCHANGE ACT) THE
COMPANY OR THE GUARANTORS, TO THE SAME EXTENT AS THE FOREGOING INDEMNITY FROM
THE COMPANY AND THE GUARANTORS TO THE INITIAL PURCHASER BUT ONLY WITH REFERENCE
TO INFORMATION RELATING TO SUCH INITIAL PURCHASER FURNISHED IN WRITING TO THE
COMPANY BY SUCH INITIAL PURCHASER EXPRESSLY FOR USE IN THE PRELIMINARY OFFERING
MEMORANDUM OR THE OFFERING MEMORANDUM, AND NOT WITH RESPECT TO THE INFORMATION
PROVIDED BY ANY OTHER INITIAL PURCHASER.
c. IN CASE ANY ACTION SHALL BE COMMENCED INVOLVING ANY PERSON
IN RESPECT OF WHICH INDEMNITY MAY BE SOUGHT PURSUANT TO SECTION 8(a) OR 8(b)
(THE "INDEMNIFIED PARTY"), THE INDEMNIFIED PARTY SHALL PROMPTLY NOTIFY THE
PERSON AGAINST WHOM SUCH INDEMNITY MAY BE SOUGHT (THE "INDEMNIFYING PARTY") IN
WRITING AND THE INDEMNIFYING PARTY SHALL ASSUME THE DEFENSE OF SUCH ACTION,
INCLUDING THE EMPLOYMENT OF COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED
PARTY AND THE PAYMENT OF ALL FEES AND EXPENSES OF SUCH COUNSEL, AS INCURRED
(EXCEPT THAT IN THE CASE OF ANY ACTION IN RESPECT OF WHICH INDEMNITY MAY BE
SOUGHT PURSUANT TO BOTH SECTIONS 8(a) AND 8(b), THE INITIAL PURCHASERS SHALL NOT
BE REQUIRED TO ASSUME THE DEFENSE OF SUCH ACTION PURSUANT TO THIS SECTION 8(c),
BUT MAY EMPLOY SEPARATE COUNSEL AND PARTICIPATE IN THE DEFENSE THEREOF, BUT THE
FEES AND EXPENSES OF SUCH COUNSEL, EXCEPT AS PROVIDED BELOW, SHALL BE AT THE
EXPENSE OF THE INITIAL PURCHASERS). ANY INDEMNIFIED PARTY SHALL HAVE THE RIGHT
TO EMPLOY SEPARATE COUNSEL IN ANY SUCH ACTION AND PARTICIPATE IN THE DEFENSE
THEREOF, BUT THE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE EXPENSE OF
THE INDEMNIFIED PARTY UNLESS (i) THE EMPLOYMENT OF SUCH COUNSEL SHALL HAVE BEEN
SPECIFICALLY AUTHORIZED IN WRITING BY THE INDEMNIFYING PARTY, (ii) THE
INDEMNIFYING PARTY SHALL HAVE FAILED TO ASSUME THE DEFENSE OF SUCH ACTION OR
EMPLOY COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY OR (iii) THE
NAMED PARTIES TO ANY SUCH ACTION (INCLUDING ANY IMPLEADED PARTIES) INCLUDE BOTH
THE INDEMNIFIED PARTY AND THE INDEMNIFYING PARTY, AND THE INDEMNIFIED PARTY
SHALL HAVE BEEN ADVISED BY SUCH COUNSEL THAT THERE MAY BE ONE OR MORE LEGAL
DEFENSES AVAILABLE TO IT WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THOSE
AVAILABLE TO THE INDEMNIFYING PARTY (IN WHICH CASE THE INDEMNIFYING PARTY SHALL
NOT HAVE THE RIGHT TO ASSUME THE DEFENSE OF SUCH ACTION ON BEHALF OF THE
INDEMNIFIED PARTY). IN ANY SUCH CASE, THE INDEMNIFYING PARTY SHALL NOT, IN
CONNECTION WITH ANY ONE ACTION OR SEPARATE BUT SUBSTANTIALLY SIMILAR OR RELATED
ACTIONS IN THE SAME JURISDICTION ARISING OUT OF THE SAME GENERAL ALLEGATIONS OR
CIRCUMSTANCES, BE LIABLE FOR THE FEES AND EXPENSES OF MORE THAN ONE SEPARATE
FIRM OF ATTORNEYS (IN ADDITION TO ANY LOCAL COUNSEL) FOR ALL INDEMNIFIED PARTIES
AND ALL SUCH FEES AND EXPENSES SHALL BE REIMBURSED AS THEY ARE INCURRED. SUCH
FIRM SHALL BE DESIGNATED IN WRITING BY DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION, IN THE CASE OF THE PARTIES INDEMNIFIED PURSUANT TO SECTION 8(a),
AND BY THE COMPANY, IN THE CASE OF PARTIES INDEMNIFIED PURSUANT TO SECTION 8(b).
THE INDEMNIFYING PARTY SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTY
FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND JUDGMENTS
BY REASON OF ANY SETTLEMENT OF ANY ACTION (i) EFFECTED WITH ITS WRITTEN CONSENT
OR (ii) EFFECTED WITHOUT ITS WRITTEN CONSENT IF THE SETTLEMENT IS ENTERED INTO
MORE THAN TWENTY BUSINESS DAYS AFTER THE INDEMNIFYING PARTY SHALL HAVE RECEIVED
A REQUEST FROM THE INDEMNIFIED PARTY FOR REIMBURSEMENT FOR THE FEES AND EXPENSES
OF COUNSEL (IN ANY CASE WHERE SUCH FEES AND EXPENSES
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ARE AT THE EXPENSE OF THE INDEMNIFYING PARTY) AND, PRIOR TO THE DATE OF SUCH
SETTLEMENT, THE INDEMNIFYING PARTY SHALL HAVE FAILED TO COMPLY WITH SUCH
REIMBURSEMENT REQUEST. NO INDEMNIFYING PARTY SHALL, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE INDEMNIFIED PARTY, EFFECT ANY SETTLEMENT OR COMPROMISE OF, OR
CONSENT TO THE ENTRY OF JUDGMENT WITH RESPECT TO, ANY PENDING OR THREATENED
ACTION IN RESPECT OF WHICH THE INDEMNIFIED PARTY IS OR COULD HAVE BEEN A PARTY
AND INDEMNITY OR CONTRIBUTION MAY BE OR COULD HAVE BEEN SOUGHT HEREUNDER BY THE
INDEMNIFIED PARTY, UNLESS SUCH SETTLEMENT, COMPROMISE OR JUDGMENT (i) INCLUDES
AN UNCONDITIONAL RELEASE OF THE INDEMNIFIED PARTY FROM ALL LIABILITY ON CLAIMS
THAT ARE OR COULD HAVE BEEN THE SUBJECT MATTER OF SUCH ACTION AND (ii) DOES NOT
INCLUDE A STATEMENT AS TO OR AN ADMISSION OF FAULT, CULPABILITY OR A FAILURE TO
ACT, BY OR ON BEHALF OF THE INDEMNIFIED PARTY.
d. TO THE EXTENT THE INDEMNIFICATION PROVIDED FOR IN THIS
SECTION 8 IS UNAVAILABLE TO AN INDEMNIFIED PARTY OR INSUFFICIENT IN RESPECT OF
ANY LOSSES, CLAIMS, DAMAGES, LIABILITIES OR JUDGMENTS REFERRED TO THEREIN, THEN
EACH INDEMNIFYING PARTY, IN LIEU OF INDEMNIFYING SUCH INDEMNIFIED PARTY, SHALL
CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY SUCH INDEMNIFIED PARTY AS A RESULT
OF SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES AND JUDGMENTS (i) IN SUCH
PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE BENEFITS RECEIVED BY THE
COMPANY AND THE GUARANTORS, ON THE ONE HAND, AND THE INITIAL PURCHASERS ON THE
OTHER HAND FROM THE OFFERING OF THE SERIES A NOTES OR (ii) IF THE ALLOCATION
PROVIDED BY CLAUSE 8(d)(i) ABOVE IS NOT PERMITTED BY APPLICABLE LAW, IN SUCH
PROPORTION AS IS APPROPRIATE TO REFLECT NOT ONLY THE RELATIVE BENEFITS REFERRED
TO IN CLAUSE 8(d)(i) ABOVE BUT ALSO THE RELATIVE FAULT OF THE COMPANY AND THE
GUARANTORS, ON THE ONE HAND, AND THE INITIAL PURCHASERS, ON THE OTHER HAND, IN
CONNECTION WITH THE STATEMENTS OR OMISSIONS WHICH RESULTED IN SUCH LOSSES,
CLAIMS, DAMAGES, LIABILITIES OR JUDGMENTS, AS WELL AS ANY OTHER RELEVANT
EQUITABLE CONSIDERATIONS. THE RELATIVE BENEFITS RECEIVED BY THE COMPANY AND THE
GUARANTORS, ON THE ONE HAND AND THE INITIAL PURCHASERS, ON THE OTHER HAND, SHALL
BE DEEMED TO BE IN THE SAME PROPORTION AS THE TOTAL NET PROCEEDS FROM THE
OFFERING OF THE SERIES A NOTES (AFTER UNDERWRITING DISCOUNTS AND COMMISSIONS,
BUT BEFORE DEDUCTING EXPENSES) RECEIVED BY THE COMPANY, AND THE TOTAL DISCOUNTS
AND COMMISSIONS RECEIVED BY THE INITIAL PURCHASER BEAR TO THE TOTAL PRICE TO
INVESTORS OF THE SERIES A NOTES. THE RELATIVE FAULT OF THE COMPANY AND THE
GUARANTORS, ON THE ONE HAND, AND THE INITIAL PURCHASERS, ON THE OTHER HAND,
SHALL BE DETERMINED BY REFERENCE TO, AMONG OTHER THINGS, WHETHER THE UNTRUE OR
ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT OR THE OMISSION OR ALLEGED OMISSION
TO STATE A MATERIAL FACT RELATES TO INFORMATION SUPPLIED BY THE COMPANY OR THE
GUARANTORS, ON THE ONE HAND, OR THE INITIAL PURCHASERS, ON THE OTHER HAND, AND
THE PARTIES' RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY
TO CORRECT OR PREVENT SUCH STATEMENT OR OMISSION.
THE COMPANY AND THE GUARANTORS AND THE INITIAL PURCHASERS AGREE THAT IT
WOULD NOT BE JUST AND EQUITABLE IF CONTRIBUTION PURSUANT TO THIS SECTION 8(d)
WERE DETERMINED BY PRO RATA ALLOCATION (EVEN IF THE INITIAL PURCHASERS WERE
TREATED AS ONE ENTITY FOR SUCH PURPOSE) OR BY ANY OTHER METHOD OF ALLOCATION
WHICH DOES NOT TAKE ACCOUNT OF THE EQUITABLE CONSIDERATIONS REFERRED TO IN THE
IMMEDIATELY PRECEDING PARAGRAPH. THE AMOUNT PAID OR PAYABLE BY AN INDEMNIFIED
PARTY AS A RESULT OF THE LOSSES, CLAIMS, DAMAGES, LIABILITIES OR
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JUDGMENTS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH SHALL BE DEEMED TO
INCLUDE, SUBJECT TO THE LIMITATIONS SET FORTH ABOVE, ANY REASONABLE LEGAL OR
OTHER REASONABLE EXPENSES INCURRED BY SUCH INDEMNIFIED PARTY IN CONNECTION WITH
INVESTIGATING OR DEFENDING ANY MATTER, INCLUDING ANY ACTION, THAT COULD HAVE
GIVEN RISE TO SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR JUDGMENTS.
NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 8, THE INITIAL PURCHASERS SHALL
NOT BE REQUIRED TO CONTRIBUTE ANY AMOUNT IN EXCESS OF THE AMOUNT BY WHICH THE
TOTAL DISCOUNTS AND COMMISSIONS RECEIVED BY SUCH INITIAL PURCHASERS EXCEEDS THE
AMOUNT OF ANY DAMAGES WHICH THE INITIAL PURCHASERS HAVE OTHERWISE BEEN REQUIRED
TO PAY BY REASON OF SUCH UNTRUE OR ALLEGED UNTRUE STATEMENT OR OMISSION OR
ALLEGED OMISSION. NO PERSON GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE
MEANING OF SECTION 11(f) OF THE ACT) SHALL BE ENTITLED TO CONTRIBUTION FROM ANY
PERSON WHO WAS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION. THE INITIAL
PURCHASERS' OBLIGATIONS TO CONTRIBUTE PURSUANT TO THIS SECTION 8(d) ARE SEVERAL
IN PROPORTION TO THE RESPECTIVE PRINCIPAL AMOUNT OF SERIES A NOTES PURCHASED BY
EACH OF THE INITIAL PURCHASERS HEREUNDER AND NOT JOINT.
e. THE REMEDIES PROVIDED FOR IN THIS SECTION 8 ARE NOT
EXCLUSIVE AND SHALL NOT LIMIT ANY RIGHTS OR REMEDIES WHICH MAY OTHERWISE BE
AVAILABLE TO ANY INDEMNIFIED PARTY AT LAW OR IN EQUITY.
0. 0. 1. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS.
THE OBLIGATIONS OF THE INITIAL PURCHASERS TO PURCHASE THE SERIES A
NOTES UNDER THIS AGREEMENT ARE SUBJECT TO THE SATISFACTION OF EACH OF THE
FOLLOWING CONDITIONS:
a. ALL THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
THE GUARANTORS CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS, EXCEPT WHERE ALREADY QUALIFIED BY MATERIALITY, IN WHICH CASE
SUCH REPRESENTATIONS AND WARRANTIES SHALL BE TRUE IN ALL RESPECTS ON THE CLOSING
DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON AND AS OF THE CLOSING DATE.
b. ON OR AFTER THE DATE HEREOF, (i) THERE SHALL NOT HAVE
OCCURRED ANY DOWNGRADING, SUSPENSION OR WITHDRAWAL OF, NOR SHALL ANY NOTICE HAVE
BEEN GIVEN OF ANY POTENTIAL OR INTENDED DOWNGRADING, SUSPENSION OR WITHDRAWAL
OF, OR OF ANY REVIEW (OR OF ANY POTENTIAL OR INTENDED REVIEW) FOR A POSSIBLE
CHANGE THAT DOES NOT INDICATE THE DIRECTION OF THE POSSIBLE CHANGE IN, ANY
RATING OF THE COMPANY OR ANY GUARANTOR OR ANY SECURITIES OF THE COMPANY OR ANY
GUARANTOR (INCLUDING, WITHOUT LIMITATION, THE PLACING OF ANY OF THE FOREGOING
RATINGS ON CREDIT WATCH WITH NEGATIVE OR DEVELOPING IMPLICATIONS OR UNDER REVIEW
WITH AN UNCERTAIN DIRECTION) BY ANY "NATIONALLY RECOGNIZED STATISTICAL RATING
ORGANIZATION" AS SUCH TERM IS DEFINED FOR PURPOSES OF RULE 436(g)(2) UNDER THE
ACT, (ii) THERE SHALL NOT HAVE OCCURRED ANY CHANGE, NOR SHALL ANY NOTICE HAVE
BEEN GIVEN OF ANY POTENTIAL OR INTENDED CHANGE, IN THE OUTLOOK FOR ANY RATING OF
THE COMPANY OR ANY GUARANTOR OR ANY SECURITIES OF THE COMPANY OR ANY GUARANTOR
BY ANY SUCH RATING ORGANIZATION AND (iii) NO SUCH RATING ORGANIZATION SHALL HAVE
GIVEN NOTICE THAT IT HAS ASSIGNED (OR IS CONSIDERING ASSIGNING) A LOWER RATING
TO THE NOTES THAN THAT ON WHICH THE NOTES WERE MARKETED.
c. SINCE THE RESPECTIVE DATES AS OF WHICH INFORMATION IS GIVEN
IN THE OFFERING MEMORANDUM OTHER THAN AS SET FORTH IN THE OFFERING MEMORANDUM
(EXCLUSIVE OF ANY
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AMENDMENTS OR SUPPLEMENTS THERETO SUBSEQUENT TO THE DATE OF THIS AGREEMENT), (i)
THERE SHALL NOT HAVE OCCURRED ANY CHANGE OR ANY DEVELOPMENT IN THE CONDITION,
FINANCIAL OR OTHERWISE, OR THE EARNINGS, BUSINESS, PROSPECTS, MANAGEMENT OR
OPERATIONS OF THE COMPANY, AND ITS SUBSIDIARIES TAKEN AS A WHOLE, (ii) THERE
SHALL NOT HAVE BEEN ANY CHANGE OR ANY DEVELOPMENT INVOLVING A PROSPECTIVE CHANGE
IN THE CAPITAL STOCK OR IN THE LONG-TERM DEBT OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES, EXCEPT AS DISCLOSED OR OTHERWISE CONTEMPLATED IN THE OFFERING
MEMORANDUM AND (iii) NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES SHALL HAVE
INCURRED ANY LIABILITY OR OBLIGATION, DIRECT OR CONTINGENT, THE EFFECT OF WHICH,
IN ANY SUCH CASE DESCRIBED IN CLAUSE 9(c)(i), 9(c)(ii) OR 9(c)(iii), IN YOUR
JUDGMENT, IS MATERIAL AND ADVERSE AND, IN YOUR JUDGMENT, MAKES IT IMPRACTICABLE
TO MARKET THE SERIES A NOTES ON THE TERMS AND IN THE MANNER CONTEMPLATED IN THE
OFFERING MEMORANDUM.
d. YOU SHALL HAVE RECEIVED ON THE CLOSING DATE A CERTIFICATE
DATED THE CLOSING DATE, SIGNED BY THE PRESIDENT AND THE CHIEF FINANCIAL OFFICER
OF THE COMPANY AND EACH OF THE GUARANTORS, CONFIRMING THE MATTERS SET FORTH IN
SECTIONS 9(a), 9(b) AND 9(c) AND STATING THAT EACH OF THE COMPANY AND THE
GUARANTORS HAS COMPLIED WITH ALL THE AGREEMENTS AND SATISFIED ALL OF THE
CONDITIONS HEREIN CONTAINED AND REQUIRED TO BE COMPLIED WITH OR SATISFIED ON OR
PRIOR TO THE CLOSING DATE.
e. YOU SHALL HAVE RECEIVED ON THE CLOSING DATE AN OPINION
(SATISFACTORY TO YOU AND COUNSEL FOR THE INITIAL PURCHASERS), DATED THE CLOSING
DATE, OF KIRKLAND & ELLIS, NEW YORK, NEW YORK, SPECIAL COUNSEL FOR THE COMPANY
AND THE GUARANTORS, TO THE EFFECT THAT:
A. ALL OF THE OUTSTANDING SHARES OF THE COMPANY'S
COMMON STOCK HAVE BEEN DULY AUTHORIZED, VALIDLY ISSUED AND ARE
FULLY PAID AND NON-ASSESSABLE. WE HAVE ASSUMED FOR PURPOSE OF
THIS OPINION THAT IN THE CASE OF EACH SHARE ISSUANCE AND
TRANSFER, THE SHARES WERE REPRESENTED BY A SHARE CERTIFICATE
WHICH COMPLIED WITH ALL APPLICABLE REQUIREMENTS IMPOSED BY
LAW, BY THE COMPANY'S CERTIFICATE OF INCORPORATION AND BYLAWS
AND BY ANY APPLICABLE RESOLUTIONS BY THE COMPANY'S BOARD OF
DIRECTORS AND THAT SUCH CERTIFICATE WAS PROPERLY SIGNED AND
AUTHENTICATED;
B. ASSUMING DUE AUTHORIZATION, EXECUTION AND DELIVERY
BY THE INITIAL PURCHASERS, THE COMPANY AND THE GUARANTORS, THE
REGISTRATION RIGHTS AGREEMENT CONSTITUTES A VALID AND LEGALLY
BINDING OBLIGATION OF THE COMPANY AND EACH GUARANTOR,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM,
FRAUDULENT TRANSFER AND SIMILAR LAWS AFFECTING CREDITORS'
RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN A PROCEEDING
AT LAW OR IN EQUITY);
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C. ASSUMING DUE AUTHORIZATION, EXECUTION AND
DELIVERY, TO THE EXTENT APPLICABLE, BY THE TRUSTEE, THE
INDENTURE CONSTITUTES AND THE NOTES WHEN AUTHENTICATED IN
ACCORDANCE WITH THE TERMS OF THE INDENTURE AND DELIVERED TO
AND PAID FOR BY THE INITIAL PURCHASERS IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT, WILL CONSTITUTE VALID AND LEGALLY
BINDING OBLIGATIONS OF THE COMPANY, ENFORCEABLE IN ACCORDANCE
WITH THEIR TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM, FRAUDULENT TRANSFER
AND SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND TO
GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER
ENFORCEMENT IS SOUGHT IN A PROCEEDING AT LAW OR IN EQUITY);
D. ASSUMING THE SUBSIDIARY GUARANTEES HAVE BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED AND, WHEN THE SERIES A
NOTES ARE EXECUTED AND AUTHENTICATED IN ACCORDANCE WITH THE
PROVISIONS OF THE INDENTURE AND DELIVERED TO AND PAID FOR BY
THE INITIAL PURCHASERS IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT, THE SUBSIDIARY GUARANTEES ENDORSED THEREON WILL BE
ENTITLED TO THE BENEFITS OF THE INDENTURE AND WILL BE VALID
AND BINDING OBLIGATIONS OF THE GUARANTORS, ENFORCEABLE IN
ACCORDANCE WITH THEIR TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM, FRAUDULENT TRANSFER
AND SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND TO
GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER
ENFORCEMENT IS SOUGHT IN A PROCEEDING AT LAW OR IN EQUITY);
E. THE EXECUTION AND DELIVERY BY THE COMPANY AND THE
GUARANTORS OF THIS AGREEMENT, THE REGISTRATION RIGHTS
AGREEMENT AND THE INDENTURE AND THE PERFORMANCE OF THEIR
AGREEMENTS THEREIN AND THE CONSUMMATION OF THE SALE OF THE
NOTES TO YOU IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT DO
NOT (i) CONSTITUTE A VIOLATION BY THE COMPANY OF ANY
APPLICABLE PROVISION OF ANY LAW, STATUTE OR REGULATION (EXCEPT
THAT WE EXPRESS NO OPINION IN THIS PARAGRAPH AS TO COMPLIANCE
WITH ANY DISCLOSURE REQUIREMENT OR ANY PROHIBITION AGAINST
FRAUD OR MISREPRESENTATION OR AS TO WHETHER PERFORMANCE OF THE
INDEMNIFICATION AND CONTRIBUTION PROVISIONS IN THIS AGREEMENT
WOULD BE PERMITTED) OR (ii) BREACH OR RESULT IN A DEFAULT
UNDER, ANY EXISTING OBLIGATION OF THE COMPANY UNDER ANY
AGREEMENTS LISTED ON SCHEDULE D HEREOF (PROVIDED THAT WE
EXPRESS NO OPINION AS TO COMPLIANCE WITH ANY FINANCIAL TEST OR
CROSS DEFAULT PROVISION IN ANY SUCH AGREEMENT); THE EXECUTION
AND DELIVERY BY THE COMPANY AND THE GUARANTORS OF THIS
AGREEMENT, REGISTRATION RIGHTS AGREEMENT AND THE INDENTURE AND
THE PERFORMANCE OF ITS AGREEMENT THEREIN AND THE CONSUMMATION
OF THE SALE OF THE NOTES TO YOU IN ACCORDANCE WITH THIS
AGREEMENT DO NOT, BASED ON OUR REVIEW OF THE COMPANY'S
CERTIFICATE OF INCORPORATION AND BYLAWS, VIOLATE SUCH
CERTIFICATE OF INCORPORATION OR BYLAWS;
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F. TO SUCH COUNSEL'S KNOWLEDGE, THE COMPANY WAS NOT
REQUIRED TO OBTAIN ANY CONSENT, APPROVAL, AUTHORIZATION OR
ORDER OF ANY GOVERNMENTAL AGENCY FOR THE ISSUANCE, DELIVERY
AND SALE OF THE NOTES BEING ISSUED AND SOLD BY IT UNDER THIS
AGREEMENT AND THE INDENTURE EXCEPT FOR ANY SUCH CONSENT,
APPROVAL, AUTHORIZATION OR ORDER WHICH MAY BE REQUIRED UNDER
THE SO-CALLED "BLUE SKY" OR SECURITIES LAWS OF ANY STATES (AS
TO WHICH SUCH COUNSEL EXPRESSES NO OPINION OR ADVICE);
G. TO SUCH COUNSEL'S KNOWLEDGE, THE COMPANY WAS NOT
REQUIRED TO OBTAIN ANY CONSENT, APPROVAL, AUTHORIZATION OR
ORDER OF ANY GOVERNMENTAL AGENCY FOR THE ISSUANCE, DELIVERY
AND SALE OF THE SUBSIDIARY GUARANTEES BEING ISSUED AND SOLD BY
IT UNDER THIS AGREEMENT AND THE INDENTURE EXCEPT FOR ANY SUCH
CONSENT, APPROVAL, AUTHORIZATION OR ORDER WHICH MAY BE
REQUIRED UNDER THE SO-CALLED "BLUE SKY" OR SECURITIES LAWS OF
ANY STATES (AS TO WHICH SUCH COUNSEL EXPRESSES NO OPINION OR
ADVICE);
H. TO SUCH COUNSEL'S KNOWLEDGE, THERE IS NO ACTION,
SUIT, PROCEEDING OR INVESTIGATION BEFORE OR BY ANY COURT OR
GOVERNMENTAL AGENCY OR BODY, DOMESTIC OR FOREIGN, PENDING OR
THREATENED AGAINST, THE COMPANY OR ANY OF ITS SUBSIDIARIES
THAT (i) HAS CAUSED SUCH COUNSEL TO CONCLUDE THAT SUCH ACTION,
SUIT, PROCEEDING OR INVESTIGATION S REQUIRED TO BE DESCRIBED
IN THE OFFERING MEMORANDUM BUT IS NOT SO DESCRIBED OR (ii)
WOULD BE REASONABLY LIKELY TO ADVERSELY AFFECT THE
CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR THE INDENTURE, INCLUDING, WITHOUT LIMITATION THE
ISSUANCE OF THE NOTES;
I. THE COMPANY IS NOT AN "INVESTMENT COMPANY" AS
DEFINED IN THE INVESTMENT COMPANY ACT OF 1940;
J. IT IS NOT NECESSARY IN CONNECTION WITH (i) THE
OFFER, SALE AND DELIVERY OF THE NOTES TO THE INITIAL
PURCHASERS PURSUANT TO THIS AGREEMENT OR (ii) THE EXEMPT
RESALES BY THE INITIAL PURCHASERS IN THE MANNER CONTEMPLATED
IN THE OFFERING MEMORANDUM TO REGISTER THE NOTES UNDER THE ACT
OR TO QUALIFY AN INDENTURE IN RESPECT THEREOF UNDER THE TIA;
K. THE NOTES AND THE INDENTURE CONFORM IN ALL
MATERIAL RESPECTS TO THE DESCRIPTIONS THEREOF CONTAINED IN THE
OFFERING MEMORANDUM; AND
L. NO FACTS HAVE COME TO THE ATTENTION OF SUCH
COUNSEL THAT HAVE CAUSED SUCH COUNSEL TO BELIEVE THAT, AS OF
THE DATE OF THE OFFERING MEMORANDUM OR AS OF THE CLOSING DATE,
THE OFFERING MEMORANDUM, AS
23
25
AMENDED OR SUPPLEMENTED, IF APPLICABLE (EXCEPT FOR THE
FINANCIAL STATEMENTS AND OTHER FINANCIAL DATA INCLUDED
THEREIN, AS TO WHICH SUCH COUNSEL NEED NOT EXPRESS ANY BELIEF)
CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO
STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, NOT MISLEADING.
THE OPINION OF KIRKLAND & ELLIS DESCRIBED IN SECTION 9(e) ABOVE SHALL
BE RENDERED TO YOU AT THE REQUEST OF THE COMPANY AND THE GUARANTORS AND SHALL SO
STATE THEREIN.
a. YOU SHALL HAVE RECEIVED ON THE CLOSING DATE AN OPINION
(SATISFACTORY TO YOU AND COUNSEL FOR THE INITIAL PURCHASERS), DATED THE CLOSING
DATE, OF LONDON & AMBURN, P.C., LOCAL COUNSEL FOR THE COMPANY IN THE STATE OF
TENNESSEE, TO THE EFFECT THAT:
M. THE COMPANY IS A CORPORATION VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF
INCORPORATION;
N. EACH OF THE GUARANTORS ORGANIZED UNDER THE LAWS OF
THE STATE OF TENNESSEE (THE "TENNESSEE GUARANTORS") IS A
CORPORATION VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF ITS JURISDICTION OF INCORPORATION;
O. EACH OF THIS AGREEMENT AND THE REGISTRATION RIGHTS
AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
THE COMPANY AND EACH OF THE TENNESSEE GUARANTORS;
P. THE INDENTURE HAS BEEN DULY AUTHORIZED, EXECUTED,
AUTHENTICATED, ISSUED AND DELIVERED BY THE COMPANY AND EACH OF
THE TENNESSEE GUARANTORS;
Q. THE NOTES HAVE BEEN DULY AUTHORIZED, EXECUTED,
AUTHENTICATED, ISSUED AND DELIVERED BY THE COMPANY;
R. THE SUBSIDIARY GUARANTEES HAVE BEEN DULY
AUTHORIZED BY EACH OF THE TENNESSEE GUARANTORS; AND
S. THE SERIES B NOTES HAVE BEEN DULY AUTHORIZED BY
THE COMPANY.
THE OPINION OF LONDON & AMBURN, P.C. DESCRIBED IN SECTION 9(F) ABOVE
SHALL BE RENDERED TO YOU AT THE REQUEST OF THE COMPANY AND EACH OF THE TENNESSEE
GUARANTORS AND SHALL SO STATE THEREIN.
a. YOU SHALL HAVE RECEIVED ON THE CLOSING DATE AN OPINION
(SATISFACTORY TO YOU AND COUNSEL FOR THE INITIAL PURCHASERS), DATED THE CLOSING
DATE, OF LOCAL
24
26
COUNSEL FOR EACH OF THE GUARANTORS IN THE STATES OF OHIO, WEST VIRGINIA,
DELAWARE, VIRGINIA, NORTH CAROLINA, NEW JERSEY, WASHINGTON, ALABAMA,
PENNSYLVANIA, FLORIDA AND CALIFORNIA, TO THE EFFECT THAT:
T. EACH GUARANTOR IS A CORPORATION VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF ITS RESPECTIVE
JURISDICTION OF INCORPORATION;
U. EACH OF THIS AGREEMENT AND THE REGISTRATION RIGHTS
AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
EACH OF THE GUARANTORS;
V. THE INDENTURE HAS BEEN DULY AUTHORIZED, EXECUTED,
AUTHENTICATED, ISSUED AND DELIVERED BY EACH OF THE GUARANTORS;
AND
W. THE SUBSIDIARY GUARANTEES HAVE BEEN DULY
AUTHORIZED BY EACH OF THE GUARANTORS.
THE OPINIONS DESCRIBED IN SECTION 9(g) ABOVE SHALL BE RENDERED TO YOU
AT THE REQUEST OF EACH OF THE GUARANTORS AND SHALL SO STATE THEREIN.
a. THE INITIAL PURCHASERS SHALL HAVE RECEIVED ON THE CLOSING
DATE AN OPINION, DATED THE CLOSING DATE, OF LATHAM & WATKINS, COUNSEL FOR THE
INITIAL PURCHASERS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE INITIAL
PURCHASERS.
b. THE INITIAL PURCHASERS SHALL HAVE RECEIVED, AT THE TIME
THIS AGREEMENT IS EXECUTED AND AT THE CLOSING DATE, LETTERS DATED THE DATE
HEREOF OR THE CLOSING DATE, AS THE CASE MAY BE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE INITIAL PURCHASERS FROM ERNST & YOUNG LLP, INDEPENDENT
PUBLIC ACCOUNTANTS, CONTAINING THE INFORMATION AND STATEMENTS OF THE TYPE
ORDINARILY INCLUDED IN ACCOUNTANTS' "COMFORT LETTERS" TO THE INITIAL PURCHASERS
WITH RESPECT TO THE FINANCIAL STATEMENTS AND CERTAIN FINANCIAL INFORMATION
CONTAINED IN THE OFFERING MEMORANDUM.
c. THE SERIES A NOTES SHALL HAVE BEEN APPROVED BY THE NASD FOR
TRADING AND DULY LISTED IN PORTAL.
d. THE INITIAL PURCHASERS SHALL HAVE RECEIVED A COUNTERPART,
CONFORMED AS EXECUTED, OF THE INDENTURE WHICH SHALL HAVE BEEN ENTERED INTO BY
THE COMPANY, THE GUARANTORS AND THE TRUSTEE.
e. THE COMPANY AND THE GUARANTORS SHALL HAVE EXECUTED THE
REGISTRATION RIGHTS AGREEMENT AND THE INITIAL PURCHASERS SHALL HAVE RECEIVED AN
ORIGINAL COPY THEREOF, DULY EXECUTED BY THE COMPANY AND THE GUARANTORS.
25
27
f. THE SENIOR CREDIT FACILITIES (AS DEFINED IN THE INDENTURE)
SHALL HAVE BEEN EXECUTED BY THE PARTIES THERETO AND, ON THE CLOSING DATE, THE
CLOSING OF THE SENIOR CREDIT FACILITIES (INCLUDING, WITHOUT LIMITATION, THE
BORROWING OF ALL TERM LOANS THEREUNDER) SHALL HAVE BEEN CONSUMMATED.
g. ALL OF THE CONDITIONS PRECEDENT TO THE RECAPITALIZATION
AGREEMENT, DATED AS OF JANUARY 25, 1999 AMONG THE COMPANY, PACIFIC PHYSICIAN
SERVICES, INC., MEDPARTNERS, INC. AND TEAM HEALTH HOLDINGS, L.L.C. SHALL HAVE
BEEN SATISFIED OR WAIVED AND THE RECAPITALIZATION OF THE COMPANY CONTEMPLATED
THEREBY SHALL HAVE BEEN CONSUMMATED.
h. NEITHER THE COMPANY NOR THE GUARANTORS SHALL HAVE FAILED AT
OR PRIOR TO THE CLOSING DATE TO PERFORM OR COMPLY WITH ANY OF THE AGREEMENTS
HEREIN CONTAINED AND REQUIRED TO BE PERFORMED OR COMPLIED WITH BY THE COMPANY OR
THE GUARANTORS, AS THE CASE MAY BE, AT OR PRIOR TO THE CLOSING DATE.
0. 0. 1. EFFECTIVENESS OF AGREEMENT AND TERMINATION.
THIS AGREEMENT SHALL BECOME EFFECTIVE UPON THE EXECUTION AND DELIVERY
OF THIS AGREEMENT BY THE PARTIES HERETO.
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME ON OR PRIOR TO THE CLOSING
DATE BY THE INITIAL PURCHASERS BY WRITTEN NOTICE TO THE COMPANY IF ANY OF THE
FOLLOWING HAS OCCURRED: (i) ANY OUTBREAK OR ESCALATION OF HOSTILITIES OR OTHER
NATIONAL OR INTERNATIONAL CALAMITY OR CRISIS OR CHANGE IN ECONOMIC CONDITIONS OR
IN THE FINANCIAL MARKETS OF THE UNITED STATES OR ELSEWHERE THAT, IN THE INITIAL
PURCHASERS' JUDGMENT, IS MATERIAL AND ADVERSE AND, IN THE INITIAL PURCHASERS'
JUDGMENT, MAKES IT IMPRACTICABLE TO MARKET THE SERIES A NOTES ON THE TERMS AND
IN THE MANNER CONTEMPLATED IN THE OFFERING MEMORANDUM, (ii) THE SUSPENSION OR
MATERIAL LIMITATION OF TRADING IN SECURITIES OR OTHER INSTRUMENTS ON THE NEW
YORK STOCK EXCHANGE, THE AMERICAN STOCK EXCHANGE, THE CHICAGO BOARD OF OPTIONS
EXCHANGE, THE CHICAGO MERCANTILE EXCHANGE, THE CHICAGO BOARD OF TRADE OR THE
NASDAQ NATIONAL MARKET OR LIMITATION ON PRICES FOR SECURITIES OR OTHER
INSTRUMENTS ON ANY SUCH EXCHANGE OR THE NASDAQ NATIONAL MARKET, (iii) THE
SUSPENSION OF TRADING OF ANY SECURITIES OF THE COMPANY OR ANY GUARANTOR ON ANY
EXCHANGE OR IN THE OVER-THE-COUNTER MARKET, (iv) THE ENACTMENT, PUBLICATION,
DECREE OR OTHER PROMULGATION OF ANY FEDERAL OR STATE STATUTE, REGULATION, RULE
OR ORDER OF ANY COURT OR OTHER GOVERNMENTAL AUTHORITY WHICH IN YOUR OPINION
MATERIALLY AND ADVERSELY AFFECTS, OR WILL MATERIALLY AND ADVERSELY AFFECT, THE
BUSINESS, PROSPECTS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS OF THE COMPANY
AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, (v) THE DECLARATION OF A BANKING
MORATORIUM BY EITHER FEDERAL OR NEW YORK STATE AUTHORITIES OR (vi) THE TAKING OF
ANY ACTION BY ANY FEDERAL, STATE OR LOCAL GOVERNMENT OR AGENCY IN RESPECT OF ITS
MONETARY OR FISCAL AFFAIRS WHICH IN YOUR OPINION HAS A MATERIAL ADVERSE EFFECT
ON THE FINANCIAL MARKETS IN THE UNITED STATES.
IF ON THE CLOSING DATE ANY ONE OR MORE OF THE INITIAL PURCHASERS SHALL
FAIL OR REFUSE TO PURCHASE THE SERIES A NOTES WHICH IT OR THEY HAVE AGREED TO
PURCHASE HEREUNDER ON SUCH DATE AND THE AGGREGATE PRINCIPAL AMOUNT OF THE SERIES
A NOTES WHICH SUCH DEFAULTING INITIAL PURCHASER OR INITIAL PURCHASERS, AS THE
CASE MAY BE, AGREED BUT FAILED TO OR REFUSED TO PURCHASE IS NOT MORE THAN
ONE-TENTH OF THE AGGREGATE PRINCIPAL AMOUNT OF THE SERIES A NOTES
26
28
TO BE PURCHASED ON SUCH DATE BY ALL INITIAL PURCHASERS, EACH NON-DEFAULTING
INITIAL PURCHASER SHALL BE OBLIGATED SEVERALLY, IN THE PROPORTION WHICH THE
PRINCIPAL AMOUNT OF THE SERIES A NOTES SET FORTH OPPOSITE ITS NAME IN SCHEDULE C
BEARS TO THE AGGREGATE PRINCIPAL AMOUNT OF THE SERIES A NOTES WHICH ALL THE
NON-DEFAULTING INITIAL PURCHASERS, AS THE CASE MAY BE, HAVE AGREED TO PURCHASE,
OR IN SUCH OTHER PROPORTION AS YOU MAY SPECIFY, TO PURCHASE THE SERIES A NOTES
WHICH SUCH DEFAULTING INITIAL PURCHASER OR INITIAL PURCHASERS, AS THE CASE MAY
BE, AGREED BUT FAILED OR REFUSED TO PURCHASE ON SUCH DATE; PROVIDED THAT IN NO
EVENT SHALL THE AGGREGATE PRINCIPAL AMOUNT OF THE SERIES A NOTES WHICH ANY
INITIAL PURCHASER HAS AGREED TO PURCHASE PURSUANT TO SECTION 2 HEREOF BE
INCREASED PURSUANT TO THIS SECTION 10 BY AN AMOUNT IN EXCESS OF ONE-NINTH OF
SUCH PRINCIPAL AMOUNT OF THE SERIES A NOTES WITHOUT THE WRITTEN CONSENT OF SUCH
INITIAL PURCHASER. IF ON THE CLOSING DATE ANY INITIAL PURCHASER OR INITIAL
PURCHASERS SHALL FAIL OR REFUSE TO PURCHASE THE SERIES A NOTES AND THE AGGREGATE
PRINCIPAL AMOUNT OF THE SERIES A NOTES WITH RESPECT TO WHICH SUCH DEFAULT OCCURS
IS MORE THAN ONE-TENTH OF THE AGGREGATE PRINCIPAL AMOUNT OF THE SERIES A NOTES
TO BE PURCHASED BY ALL INITIAL PURCHASERS AND ARRANGEMENTS SATISFACTORY TO THE
INITIAL PURCHASERS AND THE COMPANY FOR PURCHASE OF SUCH THE SERIES A NOTES ARE
NOT MADE WITHIN 48 HOURS AFTER SUCH DEFAULT, THIS AGREEMENT WILL TERMINATE
WITHOUT LIABILITY ON THE PART OF ANY NON-DEFAULTING INITIAL PURCHASER AND THE
COMPANY AND GUARANTORS. IN ANY SUCH CASE WHICH DOES NOT RESULT IN TERMINATION OF
THIS AGREEMENT, EITHER YOU OR THE COMPANY SHALL HAVE THE RIGHT TO POSTPONE THE
CLOSING DATE, BUT IN NO EVENT FOR LONGER THAN SEVEN DAYS, IN ORDER THAT THE
REQUIRED CHANGES, IF ANY, IN THE OFFERING MEMORANDUM OR ANY OTHER DOCUMENTS OR
ARRANGEMENTS MAY BE EFFECTED. ANY ACTION TAKEN UNDER THIS PARAGRAPH SHALL NOT
RELIEVE ANY DEFAULTING INITIAL PURCHASER FROM LIABILITY IN RESPECT OF ANY
DEFAULT OF ANY SUCH INITIAL PURCHASER UNDER THIS AGREEMENT.
0. 0. 2. INITIAL PURCHASERS' INFORMATION.
THE COMPANY, THE GUARANTORS AND THE INITIAL PURCHASERS SEVERALLY
ACKNOWLEDGE AND AGREE FOR ALL PURPOSES UNDER THIS AGREEMENT THAT THE STATEMENTS
WITH RESPECT TO THE OFFERING OF THE NOTES SET FORTH IN THE STABILIZATION
LANGUAGE ON THE INSIDE FRONT COVER AND THE THIRD PARAGRAPH, THE FOURTH SENTENCE
OF THE FOURTH PARAGRAPH, THE SIXTH PARAGRAPH AND THE SEVENTH PARAGRAPH UNDER THE
CAPTION "PLAN OF DISTRIBUTION" IN SUCH OFFERING MEMORANDUM CONSTITUTE THE ONLY
INFORMATION FURNISHED TO THE COMPANY IN WRITING BY THE INITIAL PURCHASERS
EXPRESSLY FOR USE IN THE OFFERING MEMORANDUM.
0. 0. 3. MISCELLANEOUS.
NOTICES GIVEN PURSUANT TO ANY PROVISION OF THIS AGREEMENT SHALL BE
ADDRESSED AS FOLLOWS: (i) IF TO THE COMPANY OR ANY GUARANTOR, TO, TEAM HEALTH,
INC., 1900 WINSTON ROAD, SUITE 300, KNOXVILLE, TN 37919 AND (ii) IF TO THE
INITIAL PURCHASERS, TO, DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION, AS
REPRESENTATIVE FOR THE INITIAL PURCHASERS, 277 PARK AVENUE, NEW YORK, NEW YORK
10172, ATTENTION: SYNDICATE DEPARTMENT, OR IN ANY CASE TO SUCH OTHER ADDRESS AS
THE PERSON TO BE NOTIFIED MAY HAVE REQUESTED IN WRITING.
THE RESPECTIVE INDEMNITIES, CONTRIBUTION AGREEMENTS, REPRESENTATIONS,
WARRANTIES AND OTHER STATEMENTS OF THE COMPANY, THE GUARANTORS AND THE INITIAL
PURCHASERS
27
29
SET FORTH IN OR MADE PURSUANT TO THIS AGREEMENT SHALL REMAIN OPERATIVE AND IN
FULL FORCE AND EFFECT, AND WILL SURVIVE DELIVERY OF AND PAYMENT FOR THE SERIES A
NOTES, REGARDLESS OF (i) ANY INVESTIGATION, OR STATEMENT AS TO THE RESULTS
THEREOF, MADE BY OR ON BEHALF OF THE INITIAL PURCHASERS, THEIR RESPECTIVE
OFFICERS OR DIRECTORS OF THE INITIAL PURCHASERS, ANY PERSON CONTROLLING THE
INITIAL PURCHASERS, THE COMPANY, ANY GUARANTOR, THE OFFICERS OR DIRECTORS OF THE
COMPANY OR ANY GUARANTORS, OR ANY PERSON CONTROLLING THE COMPANY OR ANY
GUARANTOR, (ii) ACCEPTANCE OF THE SERIES A NOTES AND PAYMENT FOR THEM HEREUNDER
AND (iii) TERMINATION OF THIS AGREEMENT.
IF FOR ANY REASON THE SERIES A NOTES ARE NOT DELIVERED BY OR ON BEHALF
OF THE COMPANY AS PROVIDED HEREIN (OTHER THAN AS A RESULT OF ANY TERMINATION OF
THIS AGREEMENT PURSUANT TO SECTION 10), THE COMPANY AND EACH GUARANTOR, JOINTLY
AND SEVERALLY, AGREE TO REIMBURSE THE INITIAL PURCHASERS FOR ALL OUT-OF-POCKET
EXPENSES (INCLUDING THE FEES AND DISBURSEMENTS OF COUNSEL) INCURRED BY THEM.
NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT, THE COMPANY SHALL BE LIABLE
FOR ALL EXPENSES WHICH IT HAS AGREED TO PAY PURSUANT TO SECTION 5(g) HEREOF. THE
COMPANY AND EACH GUARANTOR ALSO AGREE, JOINTLY AND SEVERALLY, TO REIMBURSE THE
INITIAL PURCHASERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EACH PERSON, IF
ANY, WHO CONTROLS SUCH INITIAL PURCHASER WITHIN THE MEANING OF SECTION 15 OF THE
ACT OR SECTION 20 OF THE EXCHANGE ACT FOR ANY AND ALL FEES AND EXPENSES
(INCLUDING WITHOUT LIMITATION THE FEES AND EXPENSES OF COUNSEL) INCURRED BY THEM
IN CONNECTION WITH ENFORCING THEIR RIGHTS UNDER THIS AGREEMENT (INCLUDING
WITHOUT LIMITATION ITS RIGHTS UNDER SECTION 8).
EXCEPT AS OTHERWISE PROVIDED, THIS AGREEMENT HAS BEEN AND IS MADE
SOLELY FOR THE BENEFIT OF AND SHALL BE BINDING UPON THE COMPANY, THE INITIAL
PURCHASERS, THE GUARANTORS, THE INITIAL PURCHASERS' DIRECTORS AND OFFICERS, ANY
CONTROLLING PERSONS REFERRED TO HEREIN, THE DIRECTORS OF THE COMPANY AND THE
GUARANTORS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, ALL AS AND TO THE EXTENT
PROVIDED IN THIS AGREEMENT, AND NO OTHER PERSON SHALL ACQUIRE OR HAVE ANY RIGHT
UNDER OR BY VIRTUE OF THIS AGREEMENT. THE TERM "SUCCESSORS AND ASSIGNS" SHALL
NOT INCLUDE A PURCHASER OF ANY OF THE SERIES A NOTES FROM THE INITIAL PURCHASERS
MERELY BECAUSE OF SUCH PURCHASE.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
THIS AGREEMENT MAY BE SIGNED IN VARIOUS COUNTERPARTS WHICH TOGETHER
SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
28
30
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
TEAM HEALTH, INC.
By: ____________________________
Name:
Title:
Purchase Agreement Signature Pages
31
ALLIANCE CORPORATION
HERSCHEL FISCHER, INC.
IMBS, INC.
INPHYNET HOSPITAL SERVICES, INC.
INPHYNET MEDICAL MANAGEMENT
INSTITUTE, INC.
KARL G. MANGOLD, INC.
CHARLES L. SPRINGFIELD, INC.
CLINIC MANAGEMENT SERVICES, INC.
DANIEL & YEAGER, INC.
EMERGENCY COVERAGE CORPORATION
EMERGICARE MANAGEMENT,
INCORPORATED
EMSA CONTRACTING SERVICE, INC.
EMSA LOUISIANA, INC.
HOSPITAL BASED PHYSICIAN SERVICES,
INC.
INPHYNET ANESTHESIA OF WEST
VIRGINIA, INC.
MED ASSURE SYSTEMS, INC.
METROAMERICAN RADIOLOGY, INC.
NEO-MED, INC.
PARAGON ANESTHESIA, INC.
PARAGON CONTRACTING SERVICES, INC.
PARAGON IMAGING CONSULTANTS, INC.
QUANTUM PLUS, INC.
REICH, SEIDELMANN & JANICKI CO.
ROSENDORF, MARGULIES, BORUSHOK &
SCHOENBAUM RADIOLOGY
ASSOCIATES OF HOLLYWOOD, INC.
SARASOTA EMERGENCY MEDICAL
CONSULTANTS, INC.
SOUTHEASTERN EMERGENCY
PHYSICIANS, INC.
SOUTHEASTERN EMERGENCY
PHYSICIANS OF MEMPHIS, INC.
TEAM HEALTH FINANCIAL SERVICES, INC.
TEAM RADIOLOGY, INC.
THBS, INC.
Purchase Agreement Signature Pages
32
VIRGINIA EMERGENCY PHYSICIANS, INC.
DRS. SHEER, AHEARN & ASSOCIATES, INC.
EMERGENCY PHYSICIAN ASSOCIATES,
INC.
EMERGENCY PROFESSIONAL SERVICES,
INC.
THE EMERGENCY ASSOCIATES FOR
MEDICINE, INC.
EMERGENCY PHYSICIANS OF MANATEE,
INC.
EMERGENCY MANAGEMENT
SPECIALISTS, INC.
EMSA SOUTH BROWARD, INC.
NORTHWEST EMERGENCY PHYSICIANS,
INCORPORATED
EMSA JOLIET, INC.
By:___________________________________
Name:
Title:
FISCHER MANGOLD PARTNERSHIP
By: HERSCHEL FISCHER, Inc., General
Partner
By:___________________________________
Name:
Title:
By: KARL G. MANGOLD, Inc., General
Partner
By:___________________________________
Name:
Title:
Purchase Agreement Signature Pages
33
MT. DIABLO EMERGENCY PHYSICIANS,
A CALIFORNIA GENERAL PARTNERSHIP
By: HERSCHEL FISCHER, Inc., General
Partner
By:___________________________________
Name:
Title:
Purchase Agreement Signature Pages
34
By: KARL G. MANGOLD, Inc., General
Partner
By:___________________________________
Name:
Title:
PARAGON HEALTHCARE LIMITED PARTNERSHIP
By: INPHYNET HOSPITAL SERVICES, INC.,
General Partner
By:___________________________________
Name:
Title:
TEAM HEALTH SOUTHWEST, L.P.
By: Team Radiology, Inc., General Partner
By:___________________________________
Name:
Title:
TEAM HEALTH BILLING SERVICES, L.P.
By: Team Health, Inc., General Partner
By:___________________________________
Name:
Title:
Purchase Agreement Signature Pages
35
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
NATIONSBANC MONTGOMERY SECURITIES LLC
FLEET SECURITIES, INC.
By: Donaldson, Lufkin & Jenrette Securities Corporation
By:___________________________________
Name:
Title:
Purchase Agreement Signature Pages
36
SCHEDULE A
GUARANTORS
1. ALLIANCE CORPORATION
2. EMERGENCY MANAGEMENT SPECIALISTS, INC.
3. EMSA SOUTH BROWARD, INC.
4. HERSCHEL FISCHER, INC.
5. IMBS, INC.
6. INPHYNET HOSPITAL SERVICES, INC.
7. INPHYNET MEDICAL MANAGEMENT INSTITUTE, INC.
8. KARL G. MANGOLD, INC.
9. PARAGON HEALTHCARE LIMITED PARTNERSHIP
10. CHARLES L. SPRINGFIELD, INC.
11. CLINIC MANAGEMENT SERVICES, INC.
12. DANIEL & YEAGER, INC.
13. DRS. SHEER, AHEARN & ASSOCIATES, INC.
14. EMERGENCY COVERAGE CORPORATION
15. EMERGENCY PHYSICIAN ASSOCIATES, INC.
16. EMERGENCY PHYSICIANS OF MANATEE, INC.
17. EMERGENCY PROFESSIONAL SERVICES, INC.
18. EMERGICARE MANAGEMENT, INCORPORATED
19. EMSA CONTRACTING SERVICE, INC.
20. EMSA LOUISIANA, INC.
21. HOSPITAL BASED PHYSICIAN SERVICES, INC.
22. INPHYNET ANESTHESIA OF WEST VIRGINIA, INC.
23. MED ASSURE SYSTEMS, INC.
24. METROAMERICAN RADIOLOGY, INC.
25. NEO-MED, INC.
26. NORTHWEST EMERGENCY PHYSICIANS, INCORPORATED
27. PARAGON ANESTHESIA, INC.
Purchase Agreement Schedule A
37
28. PARAGON CONTRACTING SERVICES, INC.
29. PARAGON IMAGING CONSULTANTS, INC.
30. QUANTUM PLUS, INC.
31. REICH, SEIDELMANN & JANICKI CO.
32. ROSENDORF, MARGULIES, BORUSHOK & SCHOENBAUM RADIOLOGY ASSOCIATES OF
HOLLYWOOD, INC.
33. SARASOTA EMERGENCY MEDICAL CONSULTANTS, INC.
34. SOUTHEASTERN EMERGENCY PHYSICIANS, INC.
35. SOUTHEASTERN EMERGENCY PHYSICIANS OF MEMPHIS, INC.
36. TEAM HEALTH FINANCIAL SERVICES, INC.
37. TEAM RADIOLOGY, INC.
38. THBS, INC.
39. THE EMERGENCY ASSOCIATES FOR MEDICINE, INC.
40. VIRGINIA EMERGENCY PHYSICIANS, INC.
41. EMSA JOLIET, INC.
42. TEAM HEALTH SOUTHWEST, L.P.
43. TEAM HEALTH BILLING SERVICES, L.P.
44. FISCHER MANGOLD PARTNERSHIP
45. MT. DIABLO EMERGENCY PHYSICIANS, A CALIFORNIA GENERAL PARTNERSHIP
38
SCHEDULE B
Subsidiaries
1. ALLIANCE CORPORATION
2. EMERGENCY MANAGEMENT SPECIALISTS, INC.
3. EMSA SOUTH BROWARD, INC.
4. HERSCHEL FISCHER, INC.
5. IMBS, INC.
6. INPHYNET HOSPITAL SERVICES, INC.
7. INPHYNET MEDICAL MANAGEMENT INSTITUTE, INC.
8. KARL G. MANGOLD, INC.
9. PARAGON HEALTHCARE LIMITED PARTNERSHIP
10. CHARLES L. SPRINGFIELD, INC.
11. CLINIC MANAGEMENT SERVICES, INC.
12. DANIEL & YEAGER, INC.
13. DRS. SHEER, AHEARN & ASSOCIATES, INC.
14. EMERGENCY COVERAGE CORPORATION
15. EMERGENCY PHYSICIAN ASSOCIATES, INC.
16. EMERGENCY PHYSICIANS OF MANATEE, INC.
17. EMERGENCY PROFESSIONAL SERVICES, INC.
18. EMERGICARE MANAGEMENT, INCORPORATED
19. EMSA CONTRACTING SERVICE, INC.
20. EMSA LOUISIANA, INC.
21. HOSPITAL BASED PHYSICIAN SERVICES, INC.
22. INPHYNET ANESTHESIA OF WEST VIRGINIA, INC.
23. MED ASSURE SYSTEMS, INC.
24. METROAMERICAN RADIOLOGY, INC.
25. NEO-MED, INC.
26. NORTHWEST EMERGENCY PHYSICIANS, INCORPORATED
27. PARAGON ANESTHESIA, INC.
PURCHASE AGREEMENT SCHEDULE B
39
28. PARAGON CONTRACTING SERVICES, INC.
29. PARAGON IMAGING CONSULTANTS, INC.
30. QUANTUM PLUS, INC.
31. REICH, SEIDELMANN & JANICKI CO.
32. ROSENDORF, MARGULIES, BORUSHOK & SCHOENBAUM RADIOLOGY ASSOCIATES OF
HOLLYWOOD, 3 INC.
33. SARASOTA EMERGENCY MEDICAL CONSULTANTS, INC.
34. SOUTHEASTERN EMERGENCY PHYSICIANS, INC.
35. SOUTHEASTERN EMERGENCY PHYSICIANS OF MEMPHIS, INC.
36. TEAM HEALTH FINANCIAL SERVICES, INC.
37. TEAM RADIOLOGY, INC.
38. THBS, INC.
39. THE EMERGENCY ASSOCIATES FOR MEDICINE, INC.
40. VIRGINIA EMERGENCY PHYSICIANS, INC.
41. EMSA JOLIET, INC.
42. TEAM HEALTH SOUTHWEST, L.P.
43. TEAM HEALTH BILLING SERVICES, L.P.
44. FISCHER MANGOLD PARTNERSHIP
45. MT. DIABLO EMERGENCY PHYSICIANS, A CALIFORNIA GENERAL PARTNERSHIP
40
SCHEDULE C
PRINCIPAL AMOUNT
INITIAL PURCHASERS OF NOTES
------------------ ----------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION .................. $ 60,000,000
NATIONSBANC MONTGOMERY SECURITIES LLC ... $ 32,500,000
FLEET SECURITIES, INC. .................. $ 7,500,000
------------
TOTAL ................................... $100,000,000
============
PURCHASE AGREEMENT SCHEDULE C
41
SCHEDULE D
1. TO REPRESENT ALL MATERIAL CONTRACTS THAT WOULD BE REQUIRED
TO BE FILED AS EXHIBITS IF THE OFFERING WERE TO BE MADE PURSUANT TO A
REGISTRATION STATEMENT ON FORM S-1.
42
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
43
DURABLE GENERAL POWER OF ATTORNEY
NEW YORK STATUTORY SHORT FORM
THE POWERS YOU GRANT BELOW CONTINUE TO BE EFFECTIVE SHOULD YOU
BECOME DISABLED OR INCOMPETENT
CAUTION: THIS IS AN IMPORTANT DOCUMENT. IT GIVES THE PERSON WHOM YOU
DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY DURING YOUR
LIFETIME, WHICH MAY INCLUDE POWERS TO MORTGAGE, SELL, OR OTHERWISE DISPOSE OF
ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU.
THESE POWERS WILL CONTINUE TO EXIST EVEN AFTER YOU BECOME DISABLED OR
INCOMPETENT. THESE POWERS ARE EXPLAINED MORE FULLY IN NEW YORK GENERAL
OBLIGATIONS LAW, ARTICLE 5, TITLE 15, SECTIONS 5-1502A THROUGH 5-1503, WHICH
EXPRESSLY PERMIT THE USE OF ANY OTHER OR DIFFERENT FORM OF POWER OF ATTORNEY.
THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR OTHER
HEALTH CARE DECISIONS. YOU MAY EXECUTE A HEALTH CARE PROXY TO DO THIS.
IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU
SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.
This is intended to constitute a DURABLE GENERAL POWER OF ATTORNEY
pursuant to Article 5, Title 15 of the New York General Obligation Law:
I, Philip Richard Mehler, of
51 West 72nd Street, #1510
New York, New York
do hereby appoint:
Carol Mehler
54 Birchall Drive
Scarsdale, New York
my attorney-in-fact TO ACT IN MY NAME, PLACE AND STEAD in any way which I
myself could do, if I were personally present, with respect to the following
matters as each of them is defined in Title 15 of Article 5 of the New York
General Obligations Law to the extent that I am permitted by law to act through
an agent:
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44
(DIRECTIONS: INITIAL IN THE BLANK SPACE TO THE LEFT OF YOUR CHOICE ANY ONE OR
MORE OF THE FOLLOWING LETTERED SUBDIVISIONS AS TO WHICH YOU WANT TO GIVE YOUR
AGENT AUTHORITY. IF THE BLANK SPACE TO THE LEFT OF ANY PARTICULAR LETTERED
SUBDIVISION IS NOT INITIALED, NO AUTHORITY WILL BE GRANTED FOR MATTERS THAT ARE
INCLUDED IN THAT SUBDIVISION. ALTERNATIVELY, THE LETTER CORRESPONDING TO EACH
POWER YOU WISH TO GRANT MAY BE WRITTEN OR TYPED ON THE BLANK LINE IN SUBDIVISION
"(Q)", AND YOU MAY THEN PUT YOUR INITIALS IN THE BLANK SPACE TO THE LEFT OF
SUBDIVISION "(Q)" IN ORDER TO GRANT EACH OF THE POWERS SO INDICATED.)
[ ] (A) real estate transactions;
[ ] (B) chattel and goods transactions;
[ ] (C) bond, share and commodity transactions;
[ ] (D) banking transactions;
[ ] (E) business operating transactions;
[ ] (F) insurance transactions;
[ ] (G) estate transactions;
[ ] (H) claims and litigation;
[ ] (I) personal relationships and affairs;
[ ] (J) benefits from military service;
[ ] (K) records, reports and statements;
[ ] (L) retirement benefit transactions;
[ ] (M) making gifts to my spouse, children and more remote
descendants, and parents, not to exceed in the aggregate
$10,000 to each of such persons in any year;
[ ] (N) tax matters;
[ ] (O) all other matters;
[ ] (P) full and unqualified authority to my attorney(s)-in-fact to
delegate any or all of the foregoing powers to any person or
persons whom my attorney(s)-in-fact shall select;
[ ] (Q) each of the above matters identified by the following
letters: A through P, inclusive.
This Durable Power of Attorney shall not be affected by my subsequent disability
or incompetence. I hereby revoke any prior Durable Power of Attorney given by
me to the extent it purports to confer the authority granted herein.
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45
TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, I HEREBY AGREE THAT ANY THIRD PARTY
RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT
HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO
SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION
OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND I FOR MYSELF
AND FOR MY HEIRS, EXECUTORS, LEGAL REPRESENTATIVES AND ASSIGNS, HEREBY AGREE TO
INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL
CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY
HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.
THIS DURABLE GENERAL POWER OF ATTORNEY MAY BE REVOKED BY ME AT ANY TIME.
IN WITNESS WHEREOF, I have hereunto signed my name this______ day of
_______________, 1999.
___________________________
Philip Richard Mehler
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46
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this day of , 1999, before me personally appeared Philip
Richard Mehler, to me known, and known to me to be the person described in and
who signed the foregoing instrument, and he acknowledged to me that he signed
the same.
_______________________
Notary Public
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