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EXHIBIT 10.1
BEVERLY ENTERPRISES, INC.
$200,000,000
9 5/8% SENIOR NOTES DUE 2009
PURCHASE AGREEMENT
April 18, 2001
JPMORGAN, a division of
CHASE SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
BMO NESBITT BURNS CORP.
c/o Chase Securities Inc.
270 Park Avenue, 4th floor
New York, Now York 10017
Ladies and Gentlemen:
Beverly Enterprises, Inc., a Delaware corporation (the "Company"),
proposes to issue, and sell $200,000,000 aggregate principal amount of its 9
5/8% Senior Notes due 2009 (the "Securities"). The Securities will be issued
pursuant to an indenture to be dated as of April 25, 2001 (the "Indenture")
between the Company, each of the subsidiaries of the Company listed on Schedule
1 hereto (each a "Guarantor" and together, the "Guarantors") and The Bank of New
York, as trustee (the "Trustee"). The Securities will be guaranteed (the
"Guarantees" and each a "Guarantee") jointly and severally by each of the
Guarantors. The Company hereby confirms its agreement with JPMorgan, a division
of Chase Securities, Inc. ("JPMorgan"), Banc of America Securities LLC, BNY
Capital Markets, Inc. and BMO Nesbitt Burns Corp. (together the "Initial
Purchasers") concerning the purchase of the Securities from the Company by the
several Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers
without being, registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company has
prepared a preliminary offering memorandum dated April 6, 2001 (the "Preliminary
Offering Memorandum") and will prepare an offering memorandum dated the date
hereof (the "Offering Memorandum") setting forth information concerning the
Company and the Securities. Copies of the Preliminary Offering Memorandum have
been, and copies of the Offering Memorandum will be, delivered by the
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Company to the Initial Purchasers pursuant to the terms of this Agreement. Any
reference herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. This Company hereby confirms that it has authorized the
use of the Preliminary Offering Memorandum and the Offering Memorandum in
connection with the offering and resale of the Securities by the Initial
Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of an Exchange
and Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement", pursuant to which the Company will
agree to file with the Securities and Exchange Commission (the "Commission") a
registration statement under the Securities Act (the "Exchange Offer
Registration Statement") registering an issue of senior notes of the Company and
guarantees of each of the Guarantors (the "Exchange Securities") which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions) and the
Guarantees and under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement").
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company and each
of the Guarantors. Company and the Guarantors jointly and severally represent
and warrant to, and agree with, the several Initial Purchasers on and as of the
date hereof and the Closing Date (as defined in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date the
Offering Memorandum will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided that the
Company and each of the Guarantors make no representation or warranty as to
information contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum in reliance upon and in conformity
with written information relating to the Initial Purchasers furnished to
the Company or the Guarantors by or on behalf of any Initial Purchaser
specifically for use therein as specified in Section 16 hereof (the
"Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if
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requested by a prospective purchaser of the Securities, would be required
to be provided to such prospective purchaser pursuant to Rule 144A(d)(4)
under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 2 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or, until such time as the
Exchange Securities are issued pursuant to an effective registration
statement, to qualify the Indenture under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
(d) The Company and each of its subsidiaries have been duly
incorporated or formed, as the case may be, and are validly existing
corporations or limited liability companies, as the case may be, in good
standing under the laws of their respective jurisdictions of incorporation
or formation, as the case may be, are duly qualified to do business and are
in good standing as foreign corporations or foreign limited liability
companies, as the case may be, in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure
to so qualify or have such power or authority would not, singularly or in
the aggregate, reasonably be expected to result in a material adverse
effect on the condition (financial or otherwise), results of operations or
business or prospects of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect").
(e) The Company has a capitalization as set forth in the Offering
Memorandum under the heading "Capitalization"; all of the outstanding
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable. All the
outstanding shares of capital stock or membership interests, as the case
may be, of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and nonassessable and are owned
directly or indirectly by the Company, and except as noted on Schedule 3,
are owned free and clear of any lien, charge, encumbrance, security
interest, restriction upon voting or transfer or any other claim of any
third party.
(f) The Company and each of the Guarantors has full right and
authority to execute and deliver this Agreement, the Indenture (including
the Guarantees set forth therein), the Registration Rights Agreement and
the Securities (in the case of the Company only) (collectively, the
"Transaction Documents") and to perform their respective
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obligations hereunder and thereunder and, as of the Closing Date, all
corporate or limited liability company action required to be taken by the
Company and the Guarantors for the due and proper authorization, execution
and delivery of each of the Transaction Documents and the consummation of
the transactions contemplated thereby will have been duly and validly
taken.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Company and each of
the Guarantors, except as rights to indemnification and contribution may be
limited by public policy considerations or applicable law, and, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law).
(h) The Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the
Guarantors, enforceable against the Company and each of the Guarantors in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(i) The Indenture has been duly authorized by the Company and each of
the Guarantors and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and each of the Guarantors enforceable
against the Company and each of the Guarantors in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
by general equitable principles (whether considered in a proceeding in
equity or at law). On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(j) The Securities have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided in the
Indenture (assuming the Indenture is the valid and legally binding
obligation of the Trustee and due
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authentication of the Securities by the Trustee) and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Company, as issuer, and each
of the Guarantors, as guarantors, entitled to the benefits of the Indenture
and enforceable against the Company, as issuer, and each of the Guarantors,
as guarantors in accordance with their terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(k) Each of the guarantors that, as of the date of the Guarantees, is
a guarantor of the $180,000,000 of 9% Senior Notes due 2006 issued by
Beverly Enterprises, Inc. is also a Guarantor of the Securities. Schedule 1
attached hereto sets forth all the subsidiaries of the Company that are
Guarantors of the Securities. The Guarantees have been duly authorized by
each of the Guarantors and, when the Securities have been duly executed,
authenticated, issued and delivered as provided in the Indenture and paid
for as provided herein (assuming due authorization, execution and delivery
of the Indenture by the Trustee and due authentication of the Securities by
the Trustee), will constitute valid and legally binding obligations of each
of the Guarantors, enforceable against the Guarantors in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and to general equitable principles (whether considered in
a proceeding in equity or at law).
(l) The Exchange Securities have been duly authorized by the Company
and the related guarantees have been duly authorized by each of the
Guarantors and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and the Registration Rights Agreement (assuming
the Indenture is the valid and legally binding obligation of the Trustee)
will constitute a valid and legally binding obligation of the Company, as
issuer, and each of the Guarantors, as guarantors, enforceable against the
Company, as issuer, and each of the Guarantors, as guarantors, in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(m) Each of the Indenture and the Registration Rights Agreement
conforms in all material respects to the description thereof contained in
the Offering Memorandum.
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(n) The execution, delivery and performance by the Company and each of
the Guarantors of each of the Transaction Documents to which it is a party,
the issuance, authentication sale and delivery of the Securities and
compliance by the Company and each of the Guarantors with the terms thereof
and the consummation of the transactions as contemplated by the Transaction
Documents will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
any material indenture, mortgage, deed of trust, loan agreement or other
material 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
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws (or any other comparable
organizational documents) of the Company or any of its subsidiaries or any
statute or any judgment, order, decree, rule, or regulation of any court or
arbitrator or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets;
and no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental agency or
body under any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the Company and
each of the Guarantors of each of the Transaction Documents to which each
is a party, the issuance, authentication, sale and delivery of the
Securities, the issuance of the Guarantees and compliance by the Company
and each of the Guarantors with the terms thereof and the consummation of
the transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, registrations or
qualifications which shall have been obtained or made prior to the Closing
Date or as may be required to be obtained or made under the Securities Act
and applicable state securities laws as provided in the Registration Rights
Agreement.
(o) Ernst & Young LLP are independent certified public accountants
with respect to the Company and its subsidiaries (i) as required by the
Securities Act and the rules and regulations of the Commission thereunder
and (ii) within the meaning of Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants ("AICPA") and its
interpretations and rulings thereunder. The historical financial statements
(including the related notes) contained in the Offering Memorandum comply
as to form in all material respects with the requirements applicable to a
registration statement on Form S-1 under the Securities Act (except that
certain supporting schedules are omitted); such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby and fairly
present the financial position of the entities purported to be covered
thereby at the respective dates indicated and the results
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of their operations and their cash flows for the respective periods
indicated; and the financial information contained in the Offering
Memorandum under the headings "Offering Memorandum Summary--Summary
Consolidated Financial Data", "Capitalization of the Company", "Selected
Historical Consolidated Financial Data", and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" are derived from
the accounting records of the Company and its subsidiaries and fairly
present the information purported to be shown thereby. The as adjusted
financial information contained in the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements
contained in the Offering Memorandum (except for the adjustments specified
therein). The other historical 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 such financial
statements and the books and records of the Company.
(p) Except as otherwise disclosed in the Offering Memorandum, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property or assets of
the Company or any of its subsidiaries is the subject which, singularly or
in the aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect, and to the best knowledge of the Company, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(q) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Securities or the issuance of the
Guarantees, or suspends the sale of the Securities in any jurisdiction; no
injunction, restraining order or order of any nature by any federal or
state court of competent jurisdiction has been issued with respect to the
Company or any of its subsidiaries which would prevent or suspend the
issuance or sale of the Securities or the issuance of the Guarantees or the
use of the Preliminary Offering Memorandum or the Offering Memorandum in
any jurisdiction; no action, suit or proceeding is pending against or, to
the best knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries before any court or arbitrator or any
governmental agency, body or official, domestic or foreign, which could
reasonably be expected to interfere with or adversely affect the issuance
of the Securities or the issuance of the Guarantees in any manner or draw
into question the validity or enforceability of any of the Transaction
Documents or any action taken or to be taken pursuant thereto; and the
Company has complied with any and all requests by any securities authority
in any jurisdiction for additional information to be included in the
Preliminary Offering Memorandum and the Offering Memorandum.
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(r) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws (or other comparable organizational
documents), (ii) in default, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject, which, singularly or in the
aggregate, could reasonably be expected to have a Material Adverse Effect,
or (iii) in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject which,
singularly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(s) The Company and each of its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have made
all declarations and filings with, the appropriate federal, state or
foreign regulatory agencies or bodies which are necessary for the ownership
of their respective properties or the conduct of their respective
businesses as described in the Offering Memorandum, except where the
failure to possess or make the same could not, singularly or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries has received notification
of any revocation or modification of any such license, certificate,
authorization or permit or has any reason to believe that any such license,
certificate, authorization or permit will not be renewed in the ordinary
course.
(t) The Company and each of its subsidiaries have filed all material
federal, state, local and foreign income and franchise tax returns required
to be filed through the date hereof and have paid all taxes due and owing
thereon, other than those being contested in good faith and for which
adequate reserves have been provided. No tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor does
the Company or any of its subsidiaries have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have) a Material Adverse
Effect, except those deficiencies for which adequate reserves have been
established.
(u) Neither the Company nor any of its subsidiaries is an "investment
company" or a company "controlled by" an investment company within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder.
(v) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are
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executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(w) The Company and each of its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, as are
consistent with industry practice to protect the Company and its
subsidiaries and their respective businesses. Neither the Company nor any
of its subsidiaries has received notice from any insurer or agent of such
insurer that capital improvements or other similar expenditures are
required or necessary to be made in order to continue such insurance.
(x) The Company and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) presently employed by them in
connection with the respective businesses now operated by them; and the use
of such rights in connection with their respective businesses will not
conflict in any material respect with, and the Company and its subsidiaries
have not received any notice of any claim of conflict with, any such rights
of others, except such conflicts which, singularly or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(y) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid, rights to lease or otherwise use,
all items of real and personal property which are material to the business
of the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title except
such as do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries or could not
reasonably be expected to have a Material Adverse Effect, except with
respect to secured debt described in the Offering Memorandum.
(z) Except for those that could not reasonably be expected to have a
Material Adverse Effect, no labor disturbance by or dispute with the
employees of the Company or any of its subsidiaries exists or, to the best
knowledge of the Company, is contemplated or threatened.
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(aa) Except to the extent such events could not reasonably be expected
to have a Material Adverse Effect: (i) no "prohibited transaction" (as
defined in Section 406 of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published interpretations
thereunder "ERISA"), or Section 4975 of the Internal Revenue Code of 1986,
as amended from time to time (the "Code"), or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events set
forth in Section 4043(b) of ERISA (other than events with respect to which
the 30-day notice requirement under Section 4043 of ERISA has been waived)
has occurred with respect to any employee benefit plan of the Company or
any of its subsidiaries; (ii) each such employee benefit plan is in
compliance with applicable law, including ERISA and the Code; (iii) the
Company and each of its subsidiaries have not incurred and do not expect to
incur liability under Title IV of ERISA with respect to the termination of,
or withdrawal from, any pension plan for which the Company or any of its
subsidiaries would have any liability; and (iv) each such pension plan that
is intended to be qualified under Section 401 (a) of the Code is so
qualified and nothing has occurred whether by action or by failure to act,
which could cause the loss of such qualification.
(bb) Except as described in the Offering Memorandum, there has been no
storage, generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other wastes
or other hazardous substances by, due to or caused by the Company or any of
its subsidiaries (or, to the best knowledge of the Company, any other
entity (including any predecessor) for whose acts or omissions the Company
or any of its subsidiaries is or could reasonably be expected to be liable)
upon any of the property now or previously owned or leased by the Company
or any of its subsidiaries, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree or
permit or which would, under any statute or any ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit give
rise to any liability, except for any violation or liability that could not
reasonably be expected to have, singularly or in the aggregate with all
such violation and liabilities, a Material Adverse Effect; and there has
been no disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to which
the Company or any of its subsidiaries has any knowledge, except for any
such disposal, discharge, emission or other release of any kind which could
not reasonably be expected to have, singularly or in the aggregate with all
such discharges and other releases, a Material Adverse Effect.
(cc) On and immediately after the Closing Date, the Company and its
subsidiaries, on a consolidated basis, (after giving effect to the issuance
of the Securities and to the other transactions related thereto as
described in the Offering Memorandum)
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will be Solvent. As used in this paragraph, the term "Solvent" means, with
respect to a particular date that on such date the present fair market
value (or present fair saleable value) of the assets of the Company and its
consolidated subsidiaries are not less than the total amount required to
pay the probable liabilities of the Company and its consolidated
subsidiaries on their total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured, the Company
and its consolidated subsidiaries are able to realize upon their assets and
pay their debts and other liabilities, contingent obligations and
commitments as they mature and become due in the normal course of business,
assuming the sale of the Securities as contemplated by this Agreement and
the Offering Memorandum, the Company and its consolidated subsidiaries are
not incurring debts or liabilities beyond their ability to pay as such
debts and liabilities mature and the Company and its consolidated
subsidiaries are not engaged in any business or transaction, and are not
about to engage in any business or transaction, for which their property
would constitute unreasonably small capital after giving due consideration
to the prevailing practice in the industry in which the Company and its
consolidated subsidiaries are engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(dd) Except as described in the Offering Memorandum, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in the Company
or any of its subsidiaries.
(ee) Neither the Company nor any of its subsidiaries or agents has
taken, and none of them will take, any action that might cause this
Agreement or the issuance and sale of the Securities or the issuance of the
Guarantees to violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
(ff) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give rise
to a valid claim against the Company or the Initial Purchasers for a
brokerage commission, finder's fee or like payment in connection with the
offering and sale of the Securities.
(gg) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(hh) Exclusive of the Initial Purchasers (as to which we make no
representation or warranty), none of the Company, any of its affiliates or
any person acting on its or their behalf has engaged or will engage in any
directed selling efforts (as such term
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is defined in Regulation S under the Securities Act ("Regulation S")), and
all such persons have complied and will comply with the offering
restrictions requirement of Regulation S to the extent applicable.
(ii) Exclusive of the Initial Purchasers (as to which we make no
representation or warranty), neither the Company nor any of its affiliates
has, directly or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as such
term is defined in the Securities Act), which is or will be integrated with
the sale of the Securities in a manner that would require registration of
the Securities under the Securities Act.
(jj) Exclusive of the Initial Purchasers (as to which we make no
representation or warranty), none of the Company or any of its affiliates
or any other person acting on its or their behalf has engaged, in
connection with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act.
(kk) Neither the Company nor any of its affiliates has taken and will
not take, directly or indirectly, any action prohibited by Regulation M
under the Exchange Act in connection with the offering of the Securities.
(ll) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(mm) Since the date as of which information is given in the Offering
Memorandum (exclusive of amendments or supplements after the date hereof),
except as otherwise stated therein, (i) there has been no material adverse
change or any development involving a prospective material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, management or business prospects of the Company, whether or not
arising in the ordinary course of business, (ii) none of the Company or any
of its subsidiaries has incurred any material liability or obligation,
direct or contingent, other than in the ordinary course of business, (iii)
none of the Company or any of its subsidiaries has entered into any
material transaction other than in the ordinary course of business and (iv)
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, paid or made by the Company or any of its subsidiaries on
any class of its capital stock, or any redemption in respect thereof.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and
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conditions set forth herein, the Company agrees to issue and sell to each of the
Initial Purchasers, severally and not jointly, and each of the Initial
Purchasers, severally and not jointly, agrees to purchase from the Company, the
principal amount of Securities set forth opposite the name of such Initial
Purchaser on Schedule 2 hereto at a purchase price equal to 97.5% of the
principal amount thereof. The Company shall not be obligated to deliver any of
the Securities except upon its receipt of payment for all of the Securities to
be purchased as provided herein.
(b) The Initial Purchasers have advised the Company that they propose
to offer the Securities for resale upon the terms and subject to the conditions
set forth herein and in the Offering Memorandum. Each Initial Purchaser,
severally and not jointly, represents, warrants to and agrees with the Company
that (i) it is purchasing the Securities pursuant to an exemption from
registration under the Securities Act, (ii) it has not solicited offers for, or
offered or sold, and will not solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D"), and (iii) it has solicited and will solicit offers for the
Securities only from, and has offered or sold and will offer, sell or deliver
the Securities, as part of their initial offering, only (A) within the United
States to persons whom it reasonably believes to be qualified institutional
buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the
Securities Act ("Rule 144A"), or if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and (B) outside the United
States to persons other than U.S. persons in reliance on Regulation S under the
Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on
Regulation S, each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) such Initial Purchaser is a Qualified Institutional Buyer, with
such knowledge and experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an investment in the
Securities.
(ii) the Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to or for the
account or benefit of U.S. persons except pursuant to an exemption from, or
in transactions not subject to, the registration requirements of the
Securities Act.
(iii) such Initial Purchaser has offered and sold the Securities, and
will offer and sell the Securities, (A) as part of its distribution at any
time and (B) otherwise until 40 days after the later of the commencement of
the offering of the Securities and the
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Closing Date, only in accordance with Regulation S or Rule 144A or any
other available exemption from registration under the Securities Act.
(iv) none of such Initial Purchasers or any of their respective
affiliates or any other person acting on its or their behalf has engaged or
will engage in any directed selling efforts (as such term is defined in
Regulation S) with respect to the Securities or the Guarantees, and all
such persons have complied and will comply with the offering restrictions
requirement of Regulation S.
(v) at or prior to the confirmation of sale of any Securities sold in
reliance on Regulation S, it will have sent to each distributor, dealer or
other person receiving a selling concession, fee or other remuneration,
that purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and may not be offered or sold within the
United States or to or for the account or benefit of U.S.
persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date
of original issuance of the Securities, except in accordance
with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
(vi) it has not and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the Securities,
except with its affiliates or with the prior written consent of the
Company.
Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that (i) it has not offered or sold and prior to the date
six months after the Closing Date will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 and the Public Offers
of Securities Regulations 1995 with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom; and (iii)
it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind
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described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom such
document may otherwise lawfully be issued or passed on.
(e) Each Initial Purchaser, severally and not jointly, agrees that,
prior to or simultaneously with the confirmation of sale by such Initial
Purchaser to any purchaser of any of the Securities purchased by such Initial
Purchaser from the Company pursuant hereto, such Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Company shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale where required by
applicable law). In addition to the foregoing, each Initial Purchaser
acknowledges and agrees that the Company and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Section 5(d), (e) and (g),
counsel for the Company and for the Initial Purchaser, respectively, may rely
upon the accuracy of the representations and warranties of the Initial
Purchasers and their compliance with their agreements contained in this Section
2, and each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers
may sell Securities to any affiliate of an Initial Purchaser and that any such
affiliate may sell Securities purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Cahill Gordon &
Reindel, New York, New York, or at such other place as shall be agreed upon by
the Initial Purchasers and the Company, at 10:00 A.M., New York City time, on
April 25, 2001, or at such other time or date, not later than seven full
business days thereafter, as shall be agreed upon by the Initial Purchasers and
the Company (such date and time of payment and delivery being referred to herein
as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchasers of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchasers hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as JPMorgan on behalf of the Initial Purchasers shall have
requested in writing not less than two full business days prior to the Closing
Date. The Company agrees to make one or more global certificates evidencing the
Securities available for inspection by JPMorgan on behalf of the Initial
Purchasers in New York, New York at least 24 hours prior to the Closing Date.
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4. Further Agreements of the Company and each of Guarantors. Each of
the Company and each of the Guarantors agrees with each of the several Initial
Purchasers:
(a) during the period referred to in Section 4(d): (i) to advise the
Initial Purchasers promptly and, if requested, confirm such advice in
writing, of the happening of any event which makes any statement of a
material fact made in the Offering Memorandum untrue or which requires the
making of any additions to or changes in the Offering Memorandum (as
amended or supplemented from time to time) in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; (ii) to advise the Initial Purchasers promptly of any order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the initiation
or threatening of any proceeding for any such purpose; and (iii) to use its
reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum or suspending any such qualification and, if any
such suspension is issued, to obtain the lifting thereof at the earliest
possible time;
(b) to furnish promptly to each of the Initial Purchasers and counsel
for the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers and
counsel for the Initial Purchasers and not to effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by
notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchasers or counsel for the Company, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time it is delivered to a purchaser not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
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(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
to furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act
(the foregoing agreement being for the benefit of the holders from time to
time of the Securities and prospective purchasers of the Securities
designated by such holders);
(f) for so long as the Securities are outstanding, upon the request of
an Initial Purchaser, to furnish to the Initial Purchasers copies of any
annual reports, quarterly reports and current reports filed by the Company
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar
forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to the Trustee
or to the holders of the Securities pursuant to the Indenture or the
Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may designate and to continue such qualifications in
effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdiction as the Initial Purchasers
may reasonably request; provided that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations or limited
liability companies in any jurisdiction in which they are not so qualified
or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market and for the Securities to
be eligible for clearance and settlement through The Depository Trust
Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require
registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration, Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause
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its affiliates not to, and not to authorize or knowingly permit any person
acting on their behalf to, solicit any offer to buy or offer to sell the
Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act;
and not to offer, sell, contract to sell or otherwise dispose of, directly
or indirectly, any securities under circumstances where such offer, sale,
contract or disposition would cause the exemption afforded by Section 4(2)
of the Securities Act to cease to be applicable to the offering and sale of
the Securities as contemplated by this Agreement and the Offering
Memorandum;
(k) except any notes issued under the new senior secured credit
facility and any new industrial revenue bonds issued to refinance existing
industrial revenue bonds, for a period of 90 days from the date of the
Offering Memorandum, not to offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a registration
statement for, or announce any offer, sale, contract for sale of or other
disposition of any debt securities issued or guaranteed by the Company or
any of its subsidiaries (other than the Securities) without the prior
written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchasers,
not to, and not permit any of its affiliates (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities that have been
reacquired by them, except for Securities purchased by the Company or any
of its affiliates and resold in a transaction registered under the
Securities Act;
(m) in connection with the offering of the Securities, until JPMorgan
on behalf of the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, not to, and to cause its
affiliated purchasers (as defined in Regulation M under the Exchange Act)
not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Securities, or attempt to induce any person
to purchase any Securities; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent active trading in or of raising the price of the
Securities;
(n) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
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(o) to furnish to each of the Initial Purchasers on the date hereof a
copy of the independent accountants' report included in the Offering
Memorandum signed by the accountants rendering such report;
(p) to do and perform all things required to be done and performed by
it under this Agreement that are within its reasonable control prior to or
after the Closing Date, and to use its reasonable best efforts to satisfy
all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the
Indenture which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would
require the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with the
past practices of the Company and of which the Initial Purchasers are
notified), without the prior written consent of the Initial Purchasers,
unless in the judgment of the Company and its counsel, and after
notification to the Initial Purchasers, such press release or communication
is required by law; and
(t) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds."
5. Conditions to Initial Purchasers' Obligations. The respective
obligation of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company and the Guarantors contained
herein, to the accuracy of the statements of the Company, the Guarantors and
each of their respective officers made in any certificates delivered pursuant
hereto, to the performance by the Company and the Guarantors of their
obligations hereunder required to be performed through the Closing Date, and to
each of the following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchasers
may agree; and no stop order
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suspending the sale of the Securities in any jurisdiction shall have been
issued and no proceedings for the purpose shall have been commenced or
shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and disclosed
to the Company on or prior to the Closing Date that the Offering Memorandum
or any amendment or supplement thereto contains an untrue statement of a
fact which, in the opinion of counsel for the Initial Purchasers, is
material or omits to state any fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate or limited liability company proceedings and other
legal matters incident to the authorization, form and validity of each of
the Transaction Documents and the Offering Memorandum, and all other legal
matters relating to the Transaction Documents and the transactions
contemplated thereby, shall be satisfactory in all material respects to the
Initial Purchasers, and the Company and each of the Guarantors shall have
furnished to the Initial Purchasers all documents and information that the
Initial Purchasers or their counsel may reasonably request to enable them
to pass upon such matters.
(d) Latham & Watkins shall have furnished to the Initial Purchasers a
written opinion, as special counsel to the Company and the Guarantors,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially
in the form set forth in Annex B-1 hereto.
(e) Douglas J. Babb, General Counsel of the Company, shall have
furnished to the Initial Purchasers his written opinion, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially in the
form set forth in Annex B-2 hereto.
(f) Proskauer Rose LLP, special regulatory counsel for the Company,
shall have furnished to the Initial Purchasers their written opinion,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially
in the form set forth in Annex B-3 hereto.
(g) The Initial Purchasers shall have received from Cahill Gordon &
Reindel, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial
Purchasers may reasonably require, and the Company shall have furnished to
such counsel such documents and information as they request for the purpose
of enabling them to pass upon such matters.
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(h) Epstein Becker & Green, P.C., special regulatory counsel for the
Initial Purchasers, shall have furnished to the Initial Purchasers their
written opinion, addressed to the Initial Purchasers and dated the Closing
Date, in form and substance reasonably satisfactory to the Initial
Purchasers.
(i) Weil, Gotshal & Manges LLP, special counsel for the Company, shall
have furnished to the Initial Purchasers their written opinion, addressed
to the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers.
(j) The Company shall have furnished to the Initial Purchasers a
letter (the "Comfort Letter") of Ernst & Young LLP, addressed to the
Initial Purchasers and dated the date hereof, in form and substance
satisfactory to the Initial Purchasers.
(k) The Company shall have furnished to the Initial Purchasers a
letter (the "Bring-Down Comfort Letter") of Ernst & Young LLP, addressed to
the Initial Purchasers and dated the Closing Date (A) confirming that they
are independent public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the AICPA and its interpretations and rulings thereunder, (B)
stating, as of the date of the Bring-Down Comfort Letter (or, with respect
to matters involving changes or developments since the respective dates as
of which specified financial information is given in the Offering
Memorandum, as of a date not more than three business days prior to the
date of the Bring-Down Comfort Letter), that the conclusions and findings
of such accountants with respect to the financial information and other
matters covered by the Comfort Letter are accurate and (C) confirming in
all material respects the conclusions and findings set forth in the Comfort
Letter.
(l) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its chief executive officer or its
chief financial officer (including any interim chief financial officer)
stating that (A) such officers have carefully examined the Offering
Memorandum, (B) in their opinion, the Offering Memorandum, as of its date,
did not include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading, and since the date of the Offering
Memorandum, no event has occurred which should have been set forth in a
supplement or amendment to the Offering Memorandum so that the Offering
Memorandum (as so amended or supplemented) would not include any untrue
statement of a material fact and would not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and
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(C) as of the Closing Date, the representations and warranties of the
Company and the each of the Guarantors, as applicable, in this Agreement
are true and correct in all material respects, the Company and the each of
the Guarantors, as applicable, have complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder on or prior to the Closing Date, and subsequent to the
date of the most recent financial statements contained in the Offering
Memorandum (exclusive of amendments or supplements after the date hereof),
there has been no material adverse change in the financial position or
results of operation of the Company or any of its subsidiaries, or any
change, or any development including a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole that could
reasonably be expected to have a Material Adverse Effect, except as set
forth in the Offering Memorandum (exclusive of amendments or supplements
after the date hereof).
(m) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement that shall have been executed and delivered
by a duly authorized officer or agent of the Company and of each of the
Guarantors.
(n) The Indenture shall have been duly executed and delivered by the
Company, each of the Guarantors and the Trustee, and the Securities shall
have been duly executed and delivered by the Company and duly authenticated
by the Trustee.
(o) The Securities shall have been approved by the NASD for trading in
the PORTAL Market.
(p) If any event shall have occurred that requires the Company under
Section 4(d) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(q) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of
any rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of
the Securities contemplated hereby.
(r) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any change in
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the capital stock or long-term debt or any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company and
its subsidiaries taken as a whole, the effect of which, in any such case
described above, is, in the judgment of the Initial Purchasers, so material
and adverse as to make it impracticable or inadvisable to proceed with the
sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum (exclusive of
any amendment or supplement thereto).
(s) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Securities or the issuance of the Guarantees; and no
injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Securities or
issuance of the Guarantees.
(t) Subsequent to the execution and delivery of this Agreement no
downgrading shall have occurred in the rating accorded the Securities or
any of the Company's other debt securities by a "nationally recognized
statistical rating organization", as such term is defined by the Commission
for purposes of Rule 436(g)(2) of the rules and regulations of the
Commission under the Securities Act and no such organization shall have
publicly announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Securities or any of the Company's other debt securities.
(u) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
the Company on any exchange or in the over-the-counter market shall have
been suspended or any moratorium on commercial banking activities shall
have been declared by federal or New York state authorities or an outbreak
or escalation of hostilities or a declaration by the United States of a
national emergency or war or a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such),
the effect of which, in the case of this clause (u), is, in the judgment of
the Initial Purchasers, so material and adverse as to make it impracticable
or inadvisable to proceed with the sale or the delivery of the Securities
on the terms and in the manner
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contemplated by this Agreement and in the Offering Memorandum (exclusive of
any amendment or supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to Cahill Gordon & Reindel.
6. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(q), (r), (s), (t) or (u) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities which such defaulting Initial Purchaser agreed but
failed to purchase by other persons satisfactory to the Company and the
non-defaulting Initial Purchasers, but if no such arrangements are made within
36 hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers, the Company, or the
Guarantors, except that the Company and the Guarantors will continue to be
liable for the payment of expenses to the extent set forth in Sections 8 and 12
and except that the provisions of Sections 9 and 10 shall not terminate and
shall remain in effect. As used in this Agreement the term "Initial Purchasers"
includes, for all purposes of this Agreement unless the context otherwise
requires, any party not listed in Schedule 2 hereto that, pursuant to this
Section 7, purchases Securities which a defaulting Initial Purchaser agreed but
failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons are obligated or agree to Purchase the Securities of a defaulting
Initial Purchaser, any of the non-defaulting Initial Purchasers or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Initial Purchasers may be necessary in the Offering Memorandum or in any
other document or arrangement and the Company agrees to promptly prepare any
amendment or supplement to the Offering Memorandum that effects any such
changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated due to the failure to comply with any
subsection of Section 5 (other than due to the events described in Section 5(q),
(s) or (u), in which case each party will be responsible for its own expenses)
or pursuant to Section 6, (b) the Company shall fail to tender the Securities
for delivery to the Initial Purchasers for any reason permitted under
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this Agreement or (c) the Initial Purchasers shall decline to purchase the
Securities for any reason permitted under this Agreement, the Company and the
each of the Guarantors shall reimburse the Initial Purchasers for such
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
as shall have been reasonably incurred by the Initial Purchasers in connection
with this Agreement and the proposed purchase and resale of the Securities. If
this Agreement is terminated pursuant to Section 7 by reason of the default of
one or more of the Initial Purchasers, neither the Company nor the Guarantors
shall be obligated to reimburse any defaulting Initial Purchaser on account of
such expenses.
9. Indemnification. (a) The Company and each of the Guarantors shall
jointly and severally indemnify and hold harmless each Initial Purchaser, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(a) and Section 10 as an Initial Purchaser), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to which
that Initial Purchaser may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto or in any information provided by the Company or any
Guarantor pursuant to Section 4(e), or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made not misleading and shall reimburse each Initial Purchaser
promptly upon demand for any legal or other expenses reasonably incurred by that
Initial Purchaser in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and each of the Guarantors shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with any Initial Purchasers' Information; and provided,
further, that with respect to any such untrue statement in or omission from the
Preliminary Offering Memorandum, the indemnity agreement contained in this
Section 9(a) shall not inure to the benefit of any such Initial Purchaser to the
extent that the sale to the person asserting any such loss, claim, damage,
liability or action was an initial resale by such Initial Purchaser and any such
loss, claim, damage, liability or action of or with respect to such Initial
Purchaser results from the fact that both (A) to the extent required by
applicable law, a copy of the Offering Memorandum was not sent or given to such
person at or prior to the written confirmation of the sale of such Securities to
such
26
-26-
person and (B) the untrue statement in or omission from the Preliminary Offering
Memorandum was corrected in the Offering Memorandum unless, in either case, such
failure to deliver the Offering Memorandum was a result of non-compliance by the
Company with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless the Company, each Guarantor and their respective affiliates,
their respective officers, directors, employees, representatives and agents, and
each person, if any, who controls the Company with the meaning of the Securities
Act or the Exchange Act (collectively referred to for purposes of this Section
9(b) and Section 10 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Offering Memorandum or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Initial Purchasers' Information provided by such
Initial Purchaser, and shall reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified
27
-27-
party under this Section 9 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that an indemnified party
shall have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based upon advice of counsel
to the indemnified party) there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based upon
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood, that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceedings.
The obligations of the Company, each of the Guarantors and the Initial
Purchasers in this Section 9 and in Section 10 are in addition to any other
liability that the Company, each of the Guarantors or the Initial Purchasers, as
the case may be, may otherwise have, including in respect of any breaches of
representations, warranties and agreements made herein by any such party.
28
-28-
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and each of the Guarantors, on the one hand and
the Initial Purchasers on the other, from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above, but also the relative fault of the
Company and each of the Guarantors on the one hand and the Initial Purchasers on
the other, with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and each of the Guarantors on the one hand and the Initial Purchasers on
the other, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by or on
behalf of the Company and each of the Guarantors, on the one hand, and the total
discounts and commissions received by the Initial Purchasers with respect to the
Securities purchased under this Agreement, on the other, bear to the total gross
proceeds from the sale of the Securities under this Agreement. The relative
fault 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 the Company and each of the
Guarantors or information supplied by the Company and each of the Guarantors on
the one hand or to any Initial Purchasers' Information on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omissions. The
Company, each of the Guarantors and the Initial Purchasers agree that it would
not be just and equitable if contributions pursuant to this Section 10 were to
be determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 10 shall be deemed to include, for purposes of this Section 10, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 10, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discounts and commissions received by such Initial Purchaser
with respect to the Securities purchased by it under this Agreement exceeds the
amount of any damages which such Initial Purchaser has otherwise paid or become
liable to pay by reason of any 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 Securities Act) shall be entitled to
contribution from, any person who was not guilty of such
29
-29-
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
as provided in this Section 10 are several in proportion to their respective
purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
each of the Guarantors and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Sections 9 and 10 with respect to affiliates, officers,
directors, employees, representatives, agents and controlling persons of the
Company, each of the Guarantors and the Initial Purchasers and in Section 4(e)
with respect to holders and prospective purchasers of the Securities. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 11, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
12. Expenses. The Company and each of the Guarantors agrees with the
Initial Purchasers to pay (a) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendments or supplements thereto; (c) the costs of reproducing and distributing
each of the Transaction Documents; (d) the costs incident to the preparation,
printing and delivery of the certificates evidencing the Securities, including
stamp duties and transfer taxes, if any, payable upon issuance of the
Securities; (c) the fees and expenses of the Company's counsel and independent
accountants; (f) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(g) and of
preparing, printing and distributing Blue Sky Memoranda (including related fees
and expenses of counsel for the Initial Purchasers); (g) any fee charged by
rating agencies for rating the Securities; (h) the fees and expenses of the
Trustee and any paying agent (including related fees and expenses of any counsel
to such parties); (i) all expenses and application fees incurred in connection
with the application for the inclusion of the Securities on the PORTAL Market
and the approval of the Securities for book-entry transfer by DTC; and (j) all
other costs and expenses incident to the performance of the obligations of the
Company and the Guarantors under this Agreement which are not otherwise
specifically provided for in this Section 12; provided, however, that except as
provided in this Section 12 and Section 8, the Initial Purchasers shall pay
their own costs and expenses, including the fees and disbursements of their
counsel and any advertising expenses (other than with respect to any roadshow
presentation) connected with any offers they may make.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, each of the
Guarantors and the Initial Purchasers contained in this Agreement (and any other
agreement between or among the parties hereto relating to the subject matter
hereof) or made by or on behalf of the Company,
30
-30-
each of the Guarantors or the Initial Purchasers pursuant to this Agreement or
any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any of them or any of their respective affiliates, officers,
directors, employees, representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail
or telecopy transmission to JPMorgan, a division of Chase Securities Inc.,
270 Park Avenue, New York, New York 10017, Attention: Legal Department
(telecopier no.: (212) 270-7487); or
(b) if to the Company or the Guarantors, shall be delivered or sent by
mail or telecopy transmission to the address of the Company set forth in
the Offering Memorandum, Attention: Douglas J. Babb (telecopier no.: (501)
201-4810).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Initial
Purchasers by JPMorgan.
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the Now York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
16. Initial Purchasers' Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum; (i) the last paragraph on the
front cover page concerning the terms of the offering by the Initial Purchasers;
and (ii) the statements concerning the Initial Purchasers contained in the
third, fifth, tenth, the fourth sentence of the eleventh paragraph, twelfth and
thirteenth paragraphs under the heading "Plan of Distribution."
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more
31
-31-
than one counterpart, the executed agreement, counterparts shall each be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company, the Guarantors
and the several Initial Purchasers in accordance with its terms.
[Signature Pages Follow]
32
S-1
Very truly yours,
BEVERLY ENTERPRISES, INC.
By: /s/ Schuyler Hollingsworth, Jr.
--------------------------------------
Name: Schuyler Hollingsworth, Jr.
Title: Senior Vice President and
Treasurer
GUARANTORS listed on Schedule 1 attached
hereto,
By: /s/ John W. Mackenzie
--------------------------------------
Name: John W. Mackenzie
Title: Vice President and Secretary of
each of the Guarantors
33
S-2
Accepted:
CHASE SECURITIES INC.,
as Representative of the Initial
Purchasers named on Schedule 2 attached hereto
By: /s/ Earl McClanahan
-------------------------------
Name: Earl McClanahan
Title: Managing Director
Address for notices pursuant to Section 9(c):
1 Chase Manhattan Plaza, 26th floor
New York, New York 10081
Attention: Legal Department
34
SCHEDULE 1
GUARANTORS
Employer State of
Corporation ID Number Incorporation
AEGIS Therapies, Inc. (f/k/a Beverly Rehabilitation, Inc.) 71-0811574 Delaware
AGI-Camelot, Inc. 43-1253376 Missouri
Arborland Management Company, Inc. 58-2340689 South Carolina
Associated Physical Therapy Practitioners, Inc. 23-2638708 Pennsylvania
Beverly Assisted Living, Inc. 71-0777901 Delaware
Beverly - Bella Vista Holding, Inc. 71-0797481 Delaware
Beverly - Branson Holdings, Inc. 71-0817008 Delaware
Beverly-Indianapolis, LLC 71-0824184 Indiana
Beverly - Missouri Valley Holding, Inc. 71-0797485 Delaware
Beverly - Plant City Holdings, Inc. 71-0817010 Delaware
Beverly - Rapid City Holding, Inc. 71-0797483 Delaware
Beverly - Tamarac Holdings, Inc. 71-0817009 Delaware
Beverly - Tampa Holdings, Inc. 71-0817007 Delaware
Beverly Clinical, Inc. 71-0796035 Delaware
Beverly Enterprises International Limited 95-3982125 California
Beverly Enterprises - Alabama, Inc. 95-3742145 California
Beverly Enterprises - Arizona, Inc. 95-3750871 California
35
-2-
Employer State of
Corporation ID Number Incorporation
Beverly Enterprises - Arkansas, Inc. 95-3751272 California
Beverly Enterprises - California, Inc. 95-2499218 California
Beverly Enterprises - Colorado, Inc. 95-3750882 California
Beverly Enterprises - Connecticut, Inc. 95-3849642 California
Beverly Enterprises - Delaware, Inc. 95-3849628 California
Beverly Enterprises - Distribution Services, Inc. 95-4081567 California
Beverly Enterprises - District of Columbia, Inc. 95-3750889 California
Beverly Enterprises - Florida, Inc. 95-3742251 California
Beverly Enterprises - Garden Terrace, Inc. 95-3849648 California
Beverly Enterprises - Georgia, Inc. 95-3750880 California
Beverly Enterprises - Hawaii, Inc. 95-3750890 California
Beverly Enterprises - Idaho, Inc. 95-3750886 California
Beverly Enterprises - Illinois, Inc. 95-3750883 California
Beverly Enterprises - Indiana, Inc. 95-3744258 California
Beverly Enterprises - Iowa, Inc. 95-3751271 California
Beverly Enterprises - Kansas, Inc. 95-3751269 California
Beverly Enterprises - Kentucky, Inc. 95-3750894 California
Beverly Enterprises - Louisiana, Inc. 95-3849633 California
Beverly Enterprises - Maine, Inc. 95-3849627 California
Beverly Enterprises - Maryland, Inc. 95-3750892 California
36
-3-
Employer State of
Corporation ID Number Incorporation
Beverly Enterprises - Massachusetts, Inc. 95-3750893 California
Beverly Enterprises - Michigan, Inc. 95-3898661 California
Beverly Enterprises - Minnesota, Inc. 95-3742698 California
Beverly Enterprises - Mississippi, Inc. 95-3742144 California
Beverly Enterprises - Missouri, Inc. 95-3750895 California
Beverly Enterprises - Montana, Inc. 95-3849636 California
Beverly Enterprises - Nebraska, Inc. 95-3750873 California
Beverly Enterprises - Nevada, Inc. 95-3750896 California
Beverly Enterprises - New Hampshire, Inc. 95-3849630 California
Beverly Enterprises - New Jersey, Inc. 95-3750884 California
Beverly Enterprises - New Mexico, Inc. 95-3750869 California
Beverly Enterprises - North Carolina, Inc. 95-3742257 California
Beverly Enterprises - North Dakota, Inc. 95-3751270 California
Beverly Enterprises - Ohio, Inc. 95-3750867 California
Beverly Enterprises - Oklahoma, Inc. 95-3849624 California
Beverly Enterprises - Oregon, Inc. 95-3750881 California
Beverly Enterprises - Pennsylvania, Inc. 95-3750870 California
Beverly Enterprises - Rhode Island, Inc. 95-3849621 California
Beverly Enterprises - South Carolina, Inc. 95-3750866 California
Beverly Enterprises - Tennessee, Inc. 95-3742261 California
37
-4-
Employer State of
Corporation ID Number Incorporation
Beverly Enterprises - Texas, Inc. 95-3744256 California
Beverly Enterprises - Utah, Inc. 95-3751089 California
Beverly Enterprises - Vermont, Inc. 95-3750885 California
Beverly Enterprises - Virginia, Inc. 95-3742694 California
Beverly Enterprises - Washington, Inc. 95-3750868 California
Beverly Enterprises - West Virginia, Inc. 95-3750888 California
Beverly Enterprises - Wisconsin, Inc. 95-3742696 California
Beverly Enterprises - Wyoming, Inc. 95-3849638 California
Beverly Health and Rehabilitation Services, Inc. 95-2301514 California
Beverly Healthcare, LLC 71-0817438 Indiana
Beverly Healthcare Acquisition, Inc. 71-0812407 Delaware
Beverly Healthcare - California, Inc. 95-3750879 California
Beverly Holdings I, Inc. 71-0768985 Delaware
Beverly Indemnity, Ltd. 71-0712927 Vermont
Beverly Manor Inc. of Hawaii 99-0144750 California
Beverly Real Estate Holdings, Inc. 71-0768984 Delaware
Beverly Savana Cay Manor, Inc. 95-4217381 California
Carrollton Physical Therapy Clinic, Inc. 75-2102832 Texas
Commercial Management, Inc. 42-0891358 Iowa
38
-5-
Employer State of
Corporation ID Number Incorporation
Community Care, Inc. 56-1487367 North Carolina
Compassion and Personal Care Services, Inc. 56-1904822 North Carolina
Eastern Home Health Supply & Equipment Co., Inc. 56-1581980 North Carolina
Greenville Rehabilitation Services, Inc. 75-2059145 Texas
Hallmark Convalescent Homes, Inc. 41-1413478 Michigan
HomeCare Preferred Choice, Inc. 62-1702864 Delaware
Home Health and Rehabilitation Services, Inc. 75-2012280 Texas
Hospice of Eastern Carolina, Inc. 56-1951841 North Carolina
Hospice Preferred Choice, Inc. 71-0761314 Delaware
HTHC Holdings, Inc. 71-0807323 Delaware
Las Colinas Physical Therapy Center, Inc. 75-2402177 Texas
Liberty Nursing Homes, Incorporated 54-0784334 Virginia
MATRIX Occupational Health, Inc. 58-2380955 Delaware
MATRIX Rehabilitation, Inc. 71-0783147 Delaware
MATRIX Rehabilitation - Delaware, Inc. 71-0842504 Delaware
MATRIX Rehabilitation - Georgia, Inc. 58-2554073 Delaware
MATRIX Rehabilitation - Maryland, Inc. 71-0842503 Delaware
MATRIX Rehabilitation - Ohio, Inc. 71-0842505 Delaware
MATRIX Rehabilitation - South Carolina, Inc. 73-1575603 Delaware
MATRIX Rehabilitation - Texas, Inc. 73-1589542 Delaware
MATRIX Rehabilitation - Washington, Inc. 58-2554074 Delaware
39
-6-
Employer State of
Corporation ID Number Incorporation
Medical Arts Health Facility of Lawrenceville, Inc. 58-1329700 Georgia
Moderncare of Lumberton, Inc. 56-1217025 North Carolina
Nebraska City S-C-H, Inc. 41-1413481 Nebraska
Network for Physical Therapy, Inc. 74-2453469 Texas
North Dallas Physical Therapy Associates, Inc. 75-2075331 Texas
Nursing Home Operators, Inc. 34-0949279 Ohio
Petersen Health Care, Inc. 59-2043392 Florida
PT NET, Inc. 62-1575533 Tennessee
PT Net (Colorado), Inc. 84-1277912 Colorado
Rehabilitation Associates of Lafayette, Inc. 72-1118473 Louisiana
South Alabama Nursing Home, Inc. 95-3809397 Alabama
South Dakota - Beverly Enterprises, Inc. 95-3750887 California
Spectra Healthcare Alliance, Inc. 71-0759298 Delaware
Tar Heel Infusion Company, Inc. 56-1767308 North Carolina
The Parks Physical Therapy and Work Hardening Center, Inc. 75-2452926 Texas
Theraphysics Corp. 13-3643705 Delaware
Theraphysics of New York IPA, Inc. 71-0817011 New York
Theraphysics Partners of Colorado, Inc. 51-0372115 Delaware
Theraphysics Partners of Texas, Inc. 62-1659976 Delaware
40
-7-
Employer State of
Corporation ID Number Incorporation
Theraphysics Partners of Western Pennsylvania, Inc. 23-2901884 Delaware
TMD Disposition Company 59-3151568 Florida
Vantage Healthcare Corporation 35-1572998 Delaware
41
SCHEDULE 2
INITIAL PURCHASERS
Principal Amount
Initial Purchasers of Securities
- ------------------ ----------------
JPMorgan $80,000,000
Banc of America Securities LLC $80,000,000
BNY Capital Markets, Inc. $20,000,000
BMO Nesbitt Burns Corp. $20,000,000
Total $200,000,000
============
42
SCHEDULE 3
PLEDGED SHARES
Beverly Enterprises - Alabama, Inc. 95-3742145 California
Beverly Enterprises - Arkansas, Inc. 95-3751272 California
Beverly Enterprises - Georgia, Inc. 95-3750880 California
Beverly Enterprises - Florida, Inc. 95-3742251 California
Beverly Enterprises - Massachusetts, Inc. 95-3750893 California
Beverly Enterprises - Minnesota, Inc. 95-3742698 California
Beverly Enterprises - Mississippi, Inc. 95-3742144 California
Beverly Enterprises - Missouri, Inc. 95-3750895 California
Beverly Enterprises - Nebraska, Inc. 95-3750873 California
Beverly Enterprises - North Carolina, Inc. 95-3742257 California
Beverly Enterprises - Ohio, Inc. 95-3750867 California
Beverly Enterprises - Pennsylvania, Inc. 95-3750870 California
Beverly Enterprises - South Carolina, Inc. 95-3750866 California
Beverly Enterprises - Virginia, Inc. 95-3742694 California
Beverly Enterprises - Wisconsin, Inc. 95-3742696 California
South Dakota - Beverly Enterprises, Inc. 95-3750887 California
43
ANNEX A
FORM OF REGISTRATION RIGHTS AGREEMENT
44
ANNEX B-1
FORM OF OPINION OF LATHAM & WATKINS,
COUNSEL TO THE COMPANY
45
ANNEX B-2
FORM OF OPINION OF DOUGLAS J. BABB,
GENERAL COUNSEL OF THE COMPANY
46
ANNEX B-3
FORM OF OPINION OF PROSKAUER ROSE LLP,
SPECIAL REGULATORY COUNSEL TO THE COMPANY