EXHIBIT (1)
HEALTHSOUTH CORPORATION
$350,000,000 10-3/4% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
September 20, 2000
New York, New York
UBS Warburg LLC
Deutsche Bank Securities Inc.
Chase Securities Inc.
First Union Securities, Inc.
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
HEALTHSOUTH Corporation, a Delaware corporation (the "COMPANY") agrees with
you as follows:
1. Issuance of Notes. The Company proposes to issue and sell to UBS Warburg
LLC, Deutsche Bank Securities Inc., Chase Securities Inc. and First Union
Securities, Inc. (collectively, the "INITIAL PURCHASERS") $350,000,000 aggregate
principal amount of 10-3/4% Series A Senior Subordinated Notes due 2008 (the
"INITIAL NOTES"). The Initial Notes will be issued pursuant to an indenture (the
"INDENTURE"), to be dated the Closing Date (as defined herein), by and between
the Company and The Bank of New York, as trustee (the "TRUSTEE"). Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Indenture, the Preliminary Memorandum or the Final Memorandum
(each as defined herein).
The Initial Notes will be offered and sold to the Initial Purchasers
pursuant to an exemption from the registration requirements under the Securities
Act of 1933, as amended (the "SECURITIES ACT"). The Company has prepared a
preliminary offering memorandum, dated September 6, 2000 (including any and all
exhibits thereto, the "PRELIMINARY MEMORANDUM"), and a final offering memorandum
dated and available for distribution on the date hereof (including any and all
exhibits thereto, the "FINAL MEMORANDUM") relating to the Company and the
Initial Notes. Any references herein to the Preliminary Memorandum or the Final
Memorandum shall be deemed to include all amendments and supplements thereto and
any documents filed under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and the rules and regulations of the Securities and Exchange
Commission (the "COMMISSION") thereunder, which are incorporated by reference
therein. As used herein, the term "INCORPORATED DOCUMENTS" means the documents
which at the time are
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incorporated by reference in the Preliminary Memorandum, the Final Memorandum or
any amendment or supplement thereto.
The Initial Purchasers have advised the Company that the Initial Purchasers
intend, as soon as they deem practicable after this Purchase Agreement (this
"AGREEMENT") has been executed and delivered, to resell (the "EXEMPT RESALES")
the Initial Notes purchased by the Initial Purchasers under this Agreement in
private sales exempt from registration under the Securities Act on the terms set
forth in the Final Memorandum, solely to (i) persons whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" ("QIBS") as defined in
Rule 144A under the Securities Act ("RULE 144A") and (ii) other eligible
purchasers pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act ("REGULATION S");
the persons specified in clauses (i) and (ii) are sometimes collectively
referred to herein as the "ELIGIBLE PURCHASERS."
Holders (including subsequent transferees) of the Initial Notes will have
the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT") to be dated the Closing Date in form and
substance satisfactory to the Initial Purchasers and conforming to the
description thereof in the Final Memorandum, for so long as such Initial Notes
constitute Registrable Securities (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to (i) file with the Commission under the circumstances set forth in the
Registration Rights Agreement (a) a registration statement under the Securities
Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to a new issue of
debt securities (the "EXCHANGE NOTES" and, together with the Initial Notes, the
"NOTES") to be offered in exchange for the Initial Notes (the "EXCHANGE OFFER")
and issued under the Indenture or an indenture substantially identical to the
Indenture and/or (b) under certain circumstances set forth in the Registration
Rights Agreement, a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION STATEMENT" and, together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS") relating
to the resale by certain holders of the Initial Notes, and (ii) use its
reasonable best efforts to cause such Registration Statements to be declared
effective. This Agreement, the Notes, the Indenture and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the "OPERATIVE
DOCUMENTS."
Upon issuance of the Initial Notes and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Initial Notes shall bear the legend relating thereto set forth under "Notice to
Investors" in the Final Memorandum.
2. Agreements To Sell And Purchase. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to the terms
and conditions contained in this Agreement, the Company agrees to issue and sell
to the Initial Purchasers, and the Initial Purchasers agree to purchase from the
Company, the aggregate principal amount of Initial Notes set forth opposite
their names in Schedule I hereto. The purchase price for the Initial Notes shall
be 96.8378% of their principal amount.
Each Initial Purchaser agrees with the Company that it (i) is purchasing
the Initial Notes pursuant to a private sale exempt from registration under the
Securities Act, (ii) will not solicit offers for, or offer or sell, the Initial
Notes by means of any form of general solicitation or general advertising or in
any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act, and (iii) will solicit offers for the Initial Notes only from,
and will offer, sell or deliver the Initial Notes as part of its initial
offering, only to (A) persons whom such Initial Purchaser reasonably believes to
be QIBs, or if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to such Initial Purchaser that each such account is a QIB, to whom
notice has been given that such
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sale or delivery is being made in reliance on Rule 144A, in each case, in
transactions under Rule 144A and (B) outside the United States to persons other
than U.S. persons in reliance on Regulation S.
Each Initial Purchaser agrees with the Company that it will offer, sell and
deliver the Initial Notes (i) as part of its distribution at any time, and (ii)
otherwise until 40 days after the later of the commencement of the offering of
the Initial Notes and the Closing Date, only in accordance with Rule 903 of
Regulation S, or as otherwise permitted pursuant to Rule 144A. Each Initial
Purchaser agrees with the Company that neither the affiliates of such Initial
Purchaser nor any persons acting on their behalf has engaged or will engage in
any directed selling efforts with respect to the Initial Notes, and such Initial
Purchaser has complied and will comply with the offering restrictions
requirement of Regulation S.
Prior to confirmation of the sale of Initial Notes other than a sale
pursuant to Rule 144A, each Initial Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Initial Notes from such Initial Purchaser 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 and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of the distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or Rule
144A) under the Securities Act. Terms used above have the meaning given to them
by Regulation S."
3. Delivery And Payment. Delivery of, and payment of the purchase price
for, the Initial Notes shall be made at 10:00 a.m., New York City time, on
September 25, 2000 (such date and time, the "CLOSING DATE") at the offices of
UBS Warburg LLC at 299 Park Avenue New York, New York, or such other place in
the City of New York as the parties hereto mutually agree. The Closing Date and
the location of delivery of and the form of payment for the Initial Notes may be
varied by mutual agreement between the Initial Purchasers and the Company.
One or more of the Initial Notes in global form registered in such names as
the Initial Purchasers may request upon at least one business day's notice prior
to the Closing Date, having an aggregate principal amount corresponding to the
aggregate principal amount of the Initial Notes, shall be delivered by the
Company to the Initial Purchasers (or as the Initial Purchasers direct), against
payment by the Initial Purchasers of the purchase price therefor by means of
transfer of immediately available funds to such account or accounts in
accordance with its obligations under Section 4(g) hereof as the Company shall
specify on or prior to the Closing Date, or by such means as the parties hereto
shall agree prior to the Closing Date.
4. Agreements of the Company. The Company covenants and agrees with the
Initial Purchasers as follows:
(a) The Company will advise the Initial Purchasers promptly and, if
requested by them, will confirm such advice in writing, within the period of
time referred to in paragraph (e) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which either makes any
statement made in the Preliminary Memorandum or the Final Memorandum (as then
amended or supplemented) untrue or requires the making of any additions to or
changes in the Preliminary Memorandum or the Final Memorandum (as then amended
or supplemented) in order to make the statements therein not
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misleading, or of the necessity to amend or supplement the Final Memorandum (as
then amended or supplemented) to comply with any law.
(b) The Company will furnish to the Initial Purchasers, without charge, as
of the date of the Preliminary Memorandum and as of the date of the Final
Memorandum, such number of copies of the Preliminary Memorandum and the Final
Memorandum, as it may then be amended or supplemented, as they may reasonably
request.
(c) The Company will not make any amendment or supplement to the Final
Memorandum of which the Initial Purchasers have not previously been given two
business days' prior advice or to which the Initial Purchasers have reasonably
objected after being so advised, or file any document which upon filing becomes
an Incorporated Document, without delivering a copy of such document to the
Initial Purchasers, prior to or concurrently with such filing.
(d) The Company consents to the use of the Preliminary Memorandum and the
Final Memorandum (and of any amendment or supplement thereto) in accordance with
the securities or Blue Sky laws of the jurisdictions in which the Initial Notes
are offered by the Initial Purchasers and by all dealers to whom Initial Notes
may be sold in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the distribution of the Notes by
the Initial Purchasers to Eligible Purchasers, any event shall occur that in the
judgment of the Company or in the opinion of counsel for the Initial Purchasers
should be set forth in the Final Memorandum (as then amended or supplemented) in
order to make the statements therein not misleading, or if it is necessary to
supplement or amend the Final Memorandum, or to file under the Exchange Act any
document which upon filing becomes an Incorporated Document, to comply with any
law, the Company will forthwith prepare an appropriate supplement or amendment
thereto or such document, and will expeditiously furnish to the Initial
Purchasers and dealers a reasonable number of copies thereof. In the event that
the Company and the Initial Purchasers agree that the Final Memorandum should be
amended or supplemented, or that a document should be filed under the Exchange
Act which upon filing becomes an Incorporated Document, the Company, if
requested by the Initial Purchasers, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed amendment or
supplement or such document.
(f) The Company will cooperate with the Initial Purchasers and with their
counsel in connection with the qualification of the Initial Notes for offering
and sale by the Initial Purchasers and by dealers under the securities or Blue
Sky laws of such jurisdictions as the Initial Purchasers may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such qualification; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Initial Notes, in any jurisdiction where it is not now so subject.
(g) So long as any of the Initial Notes are outstanding, the Company will
furnish to the Initial Purchasers (1) as soon as available, a copy of each
report of the Company mailed to stockholders or filed with the Commission, and
2) from time to time such other information concerning the Company as the
Initial Purchasers may reasonably request.
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(h) The Company will apply the net proceeds from the sale of the Initial
Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Final Memorandum.
(i) Except as stated in this Agreement and in the Preliminary Memorandum
and the Final Memorandum, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Initial
Notes to facilitate the sale or resale of the Initial Notes. Except as permitted
by the Securities Act, the Company will not distribute any offering material in
connection with the Exempt Resales.
(j) From and after the Closing Date, so long as any of the Initial Notes
are outstanding and are "Restricted Securities" within the meaning of the Rule
144(a)(3) under the Securities Act or, if earlier, until two years after the
Closing Date, and during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of
the Initial Notes and prospective purchasers of the Initial Notes 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 to permit compliance with Rule 144A in connection with resale of
the Initial Notes.
(k) The Company agrees not to sell, offer for sale or solicit offers to buy
or otherwise negotiate, and to cause its Subsidiaries not to sell, offer for
sale or solicit offers to buy or otherwise negotiate, in respect of any security
(as defined in the Securities Act) that would be integrated with the sale of the
Initial Notes in a manner that would require the registration under the
Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers
of the Initial Notes.
(l) The Company agrees to comply with all of the terms and conditions of
the Registration Rights Agreement, and all agreements set forth in the
representation letters of the Company to The Depository Trust Company ("DTC")
relating to the approval of the Initial Notes by DTC for "book entry" transfer.
(m) The Company agrees that prior to any registration of the Notes pursuant
to the Registration Rights Agreement, or at such earlier time as may be so
required, the Indenture shall be qualified under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), and that it will cause to be
entered into any necessary supplemental indentures in connection therewith.
(n) Neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf, will engage in any directed selling efforts with respect
to the Initial Notes, and each of them will comply with the offering
restrictions requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(o) The Company will not, until 60 days following the Closing Date, without
the prior written consent of the Initial Purchasers, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the offering
of, any debt securities issued or guaranteed by the Company (other than the
Notes).
(p) The Company will not, and will not permit any of its affiliates to,
resell any Initial Notes that have been acquired by any of them unless and until
a registration statement with respect to such Initial Notes filed pursuant to
the Securities Act has been declared effective.
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(q) The Company shall use its reasonable best efforts to prevent the
issuance of any stop order or order suspending the qualification or exemption of
any of the Initial Notes under any securities laws, and if at any time any
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption of any of the Initial Notes under any
securities laws, the Company shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(r) The Company shall use its reasonable best efforts to effect the
inclusion of the Initial Notes in the PORTAL Market ("PORTAL")
5. Representations And Warranties of the Company and the Initial
Purchasers.
(a) The Company represents and warrants to the Initial Purchasers that:
(i) Each of the Preliminary Memorandum and the Final Memorandum has been
prepared by the Company for use by the Initial Purchasers in connection with
Exempt Resales. No order or decree preventing the use of the Preliminary
Memorandum or the Final Memorandum or any amendment or supplement thereto, nor
any order asserting that the transactions contemplated by this Agreement are
subject to the registration requirements of the Securities Act, has been issued
and no proceeding for that purpose has commenced or is pending or, to the
knowledge of the Company, is contemplated.
(ii) The Preliminary Memorandum, at the date thereof, did not contain any
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 under
which they were made, not misleading. The Final Memorandum, at the date hereof
and at the Closing Date, does not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, except that this representation and warranty does not apply to
statements in or omissions from the Preliminary Memorandum or the Final
Memorandum, as supplemented or amended, made in reliance upon and in conformity
with information relating to the Initial Purchasers furnished to the Company in
writing by or on behalf of the Initial Purchasers expressly for use therein.
(iii) The Incorporated Documents heretofore filed were filed in a timely
manner and, when they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in all material
respects to the requirements of the Exchange Act and the rules and regulations
thereunder, and any further Incorporated Documents so filed will, when they are
filed, conform in all material respects with the requirements of the Exchange
Act and the rules and regulations thereunder; no such document when it was filed
(or, if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and no such further document, when
it is filed, will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
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(iv) The Indenture has been duly and validly authorized by the Company and,
upon its execution, delivery and performance by the Company and assuming due
authorization, execution, delivery and performance by the Trustee, will be a
valid and binding agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally, and conforms in all
material respects to the description thereof in the Preliminary Memorandum and
the Final Memorandum; no qualification of the Indenture under the Trust
Indenture Act is required in connection with the offer and sale of the Initial
Notes contemplated hereby or in connection with the Exempt Resales.
(v) The Initial Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally, and subject to
the applicability of general principles of equity, and the Initial Notes will
conform in all material respects to the description thereof in the Preliminary
Memorandum and the Final Memorandum.
(vi) The Initial Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued, fully paid and
nonassessable and free of any preemptive or similar rights.
(vii) Each of the Company and its corporate subsidiaries (collectively, the
"SUBSIDIARIES") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate and other) to own, lease
and operate its properties and conduct its business as described in the
Preliminary Memorandum and the Final Memorandum; each of the Company's
affiliated partnerships (collectively, the "CONTROLLED ENTITIES") is duly formed
and validly existing under the laws of the jurisdiction pursuant to which it was
organized with full power and authority (partnership and other) to own, lease
and operate its properties and conduct its business as described in the
Preliminary Memorandum and the Final Memorandum; and each of the Company, the
Subsidiaries and the Controlled Entities is duly qualified to do business as a
foreign corporation or partnership in good standing in all other jurisdictions,
if any, where the ownership or leasing of properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the condition (financial
or other), business, prospects, properties, net worth or results of operations
of the Company, the Subsidiaries and the Controlled Entities taken as a whole (a
"MATERIAL ADVERSE EFFECT"); all of the issued shares of capital stock of each of
the Subsidiaries, and the partnership interests representing ownership in each
Controlled Entity held of record or beneficially by the Company, have been duly
authorized and validly issued, are fully paid and nonassessable and are owned by
the Company free and clear of all liens, security interests, charges or other
encumbrances, except for those liens, security interests, charges or other
encumbrances that would not have a Material Adverse Effect; and all of the
outstanding
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interests representing ownership in the Controlled Entities have been offered,
sold and issued in compliance with applicable state and federal laws related to
the issuance of securities.
(viii) There is no legal or governmental proceeding pending, or to the
Company's knowledge, threatened to which the Company, any Subsidiary or any
Controlled Entity is a party or of which the business or property of the
Company, any Subsidiary or any Controlled Entity is the subject which is not
disclosed in the Preliminary Memorandum and the Final Memorandum and which the
Company reasonably believes might result in a judgment or decree having a
Material Adverse Effect or which is otherwise of a character that would be
required to be described in the Preliminary Memorandum and the Final Memorandum
if the Preliminary Memorandum and the Final Memorandum were prospectuses
included in a registration statement on Form S-1 under the Securities Act, and
there is no contract, license or other document of a character that would be
required to be described in the Preliminary Memorandum and the Final Memorandum
or to be filed as an exhibit to any Incorporated Document which is not described
or filed as required by the Securities Act or the Exchange Act.
(ix) The Company and its Subsidiaries are not in violation of their
respective charters or bylaws, the Controlled Entities are not in violation of
their respective agreements of limited partnership, and neither the Company nor
any Subsidiary or Controlled Entity is in default or, upon receipt of notice or
the lapse of time, will be in default, in any respect in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture or other
instrument to which it is a party or by which it is bound, which violation or
default would have a Material Adverse Effect; and neither the issuance, offer,
sale or delivery of the Initial Notes, the execution, delivery or performance of
this Agreement, the Indenture or the Registration Rights Agreement by the
Company nor the consummation by the Company of the transactions contemplated
hereby or thereby require any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental body
(except such as may be required in connection with the registration under the
Securities Act of the Initial Notes in accordance with the Registration Rights
Agreement and the qualification of the Indenture under the Trust Indenture Act
and except for compliance with the securities or Blue Sky laws of various
jurisdictions), and will not conflict with or constitute a breach of or default
under, or violate, the charter or bylaws of the Company or any Subsidiary, or
the agreement of limited partnership of any Controlled Entity, or any agreement,
indenture or other instrument to which the Company or any Subsidiary or any
Controlled Entity is a party or by which it is bound, or any law, regulations,
order or decree applicable to the Company, any Subsidiary or any Controlled
Entity.
(x) The accountants, Ernst & Young LLP, who have certified or shall certify
the financial statements included as part of the Preliminary Memorandum and the
Final Memorandum (or any amendment or supplement thereto) or the Incorporated
Documents, are independent public accountants as required by the Securities Act.
(xi) The financial statements, together with related schedules and notes,
included or incorporated by reference in the Preliminary Memorandum and the
Final Memorandum (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and cash flows of the
Company, the Subsidiaries and the Controlled
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Entities on the basis stated in the Preliminary Memorandum and the Final
Memorandum at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other
financial and statistical information and data included or incorporated by
reference in the Preliminary Memorandum and the Final Memorandum (and any
amendment or supplement thereto) are accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company, the Subsidiaries and the Controlled Entities; since June 30, 2000,
except as set forth or contemplated in the Final Memorandum, (a) none of the
Company or any Subsidiary has (1) incurred any liabilities or obligations,
direct or contingent, that would reasonably be expected to have a Material
Adverse Effect, or (2) entered into any material transaction not in the ordinary
course of business, (b) there has not been any event or development in respect
of the business or condition (financial or other) of the Company and the
Subsidiaries that, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect and (c) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(xii) The Company has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement and the Registration Rights
Agreement; the execution and delivery of, and the performance by the Company of
its obligations under, this Agreement and the Registration Rights Agreement have
been duly and validly authorized by the Company, and this Agreement and the
Registration Rights Agreement have been duly executed and delivered by the
Company and constitute the valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement hereof and thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the applicability of general principles of equity, and except as
rights to indemnity and contribution hereunder and thereunder may be limited by
Federal or state securities laws or principles of public policy.
(xiii) Except as disclosed in the Preliminary Memorandum and the Final
Memorandum (or any amendment or supplement thereto), subsequent to the dates as
of which such information is given in the Preliminary Memorandum and the Final
Memorandum (or any amendment or supplement thereto), neither the Company nor any
of the Subsidiaries or Controlled Entities has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company, the Subsidiaries
and the Controlled Entities taken as a whole, and there has not been any change
in the capital stock, or material increase in the short-term debt or long-term
debt, of the Company or any of the Subsidiaries or Controlled Entities, or any
material adverse change, or any development involving or which may reasonably be
expected to involve a prospective material adverse change in the condition
(financial or other), business, net worth or results of operations of the
Company, the Subsidiaries and the Controlled Entities taken as a whole.
(xiv) The Company and each Subsidiary and Controlled Entity have good and
marketable title to all real and personal property described in the Preliminary
Memorandum and the Final Memorandum as being owned respectively by them, in each
case free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the
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Preliminary Memorandum and the Final Memorandum or such as are not materially
significant or important in relation to the business of the Company, the
Subsidiaries and the Controlled Entities taken as a whole; and the real and
personal property held under lease by the Company, any Subsidiary or any
Controlled Entity is held by such entity under valid, subsisting and enforceable
leases with only such exceptions as in the aggregate are not material and do not
interfere with the conduct of the business of the Company, the Subsidiaries and
the Controlled Entities taken as a whole; provided, however, that no
representation is made hereby as to the title of the lessors of such property.
(xv) Except as permitted by the Securities Act, the Company has not
distributed and, prior to the later to occur of the Closing Date and completion
of the distribution of the Initial Notes, will not distribute any offering
material in connection with the offering and sale of the Initial Notes other
than the Preliminary Memorandum and the Final Memorandum.
(xvi) Each of the Company, the Subsidiaries and the Controlled Entities
holds and is operating in compliance (in all material respects) with all
material franchises, grants, authorizations, licenses, permits, easements,
consents, certificates and orders of any governmental or self-regulatory body
required for the conduct of its business, and all of such are valid and in full
force and effect, and each of the Company, the Subsidiaries and the Controlled
Entities is in compliance in all material respects with all laws, regulations,
orders and decrees applicable to it which have a material effect on its
business, properties or assets.
(xvii) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xviii) To the best of the Company's knowledge after reasonable
investigation, neither the Company, any Subsidiary or any Controlled Entity, nor
any employee or agent thereof, has made any payment of funds of the Company, any
Subsidiary or any Controlled Entity or received or retained any funds in
violation of any law, rule or regulation, which violation would have a Material
Adverse Effect.
(xix) The Company, each Subsidiary and each Controlled Entity have filed or
timely obtained extensions to file all tax returns required to be filed by it,
which returns are complete and correct, and are not in default in the payment of
any taxes which were payable pursuant to said returns or any assessments with
respect thereto, except where the failure to file such returns and make such
payments would not have a Material Adverse Effect.
(xx) No holder of any security of the Company (other than holders of the
Initial Notes) has any right to request or demand registration of any security
of the Company because of the consummation of the transactions contemplated by
this Agreement or the Registration Rights Agreement.
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(xxi) Each of the Company, the Subsidiaries and the Controlled Entities own
all patents, trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Preliminary Memorandum and the Final Memorandum as being
owned by them or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company, the Subsidiaries or
the Controlled Entities with respect to the foregoing that would have a Material
Adverse Effect.
(xxii) When the Initial Notes are issued and delivered pursuant to this
Agreement, such Initial Notes will not be of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as any security of the Company that
is listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
(xxiii) Neither the Company nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act ("REGULATION D")) of the Company has
directly, or through any agent (provided that no representation is made as to
the Initial Purchasers or any person acting on their behalf), (A) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be integrated with
the offering and sale of the Initial Notes in a manner that would require the
registration of the Initial Notes under the Securities Act or (B) engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offering of the Initial Notes.
(xxiv) Except as otherwise provided in the Indenture, the Company is not
required to deliver the information specified in Rule 144A(d)(4) in connection
with the offering and resale of the Initial Notes by the Initial Purchasers.
(xxv) The Exchange Notes have been, or upon the Closing Date will be, duly
and validly authorized for issuance by the Company and, when issued,
authenticated and delivered by the Company in accordance with the terms of the
Registration Rights Agreement, the Exchange Offer and the Indenture, the
Exchange Notes will be legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against of the Company
in accordance with their terms, except that enforceability of the Exchange Notes
may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the discretion of the court
before which any proceedings therefor may be brought. The Exchange Notes, when
issued, authenticated and delivered, will conform in all material respects to
the description thereof in the Preliminary Memorandum and the Final Memorandum.
(xxvi) All taxes, fees and other governmental charges that are due and
payable on or prior to the Closing Date in connection with the execution,
delivery and performance of the Operative Documents and the execution, delivery
and sale of the Initial Notes shall have been paid by or on behalf of the
Company at or prior to the Closing Date.
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(xxvii) Except as would not reasonably be expected to have a Material
Adverse Effect, no labor disturbance by the employees of any of the Company or
the Subsidiaries exists or, to the knowledge of the Company, is imminent.
(xxviii) None of the Company or any Subsidiary is an "investment company"
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xxix) The Company and each Subsidiary maintains insurance covering its
properties, assets, operations, personnel and businesses, and such insurance is
of such type and in such amounts as the Company reasonably deems necessary to
protect the Company and the Subsidiaries and their businesses. None of the
Company or any Subsidiary has received notice from any insurer or agent of such
insurer that any material capital improvements or other material expenditures
will have to be made in order to continue any insurance maintained by any of
them other than capital improvements and other expenditures that have been
budgeted by the Company or the Subsidiaries, as the case may be.
(xxx) None of the Company or any Subsidiary (or any agent thereof acting on
their behalf) has taken, and none of them will take, any action that might cause
this Agreement or the issuance or sale of the Notes to violate Regulations T, U
or X of the Board of Governors of the Federal Reserve System or analogous
foreign laws and regulations, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(xxxi) As of the date hereof and immediately prior to and following the
issuance of the Initial Notes, the Company is and will be Solvent. The Company
is not contemplating either the filing of a petition by it under any bankruptcy
or insolvency laws or the liquidating of all or a substantial portion of its
property, and the Company has no knowledge of any Person contemplating the
filing of any such petition against the Company. As used herein, "SOLVENT" shall
mean, for any person on a particular date, that on such date (a) the fair value
of the assets of such person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such person, (b) such
person does not intend to, and does not believe that it will, incur debts and
liabilities beyond such person's ability to pay as such debts and liabilities
mature, (c) such person is not engaged in a business or a transaction, and is
not about to engage in a business or a transaction, for which such person's
property would constitute an unreasonably small capital and (d) such person is
able to pay its debts as they become due and payable.
(xxxii) Except as described under the caption "Plan of Distribution" in the
Preliminary Memorandum and the Final Memorandum there are no contracts,
agreements or understandings between the Company or any of the Subsidiaries and
any other person other than the Initial Purchasers that would give rise to a
valid claim against the Company, any such Subsidiary or the Initial Purchasers
for a brokerage commission, finder's fee or like payment in connection with the
issuance, purchase and sale of the Notes.
(xxxiii) Except as set forth in the Preliminary Memorandum and the Final
Memorandum, the Company and each Subsidiary (A) is in compliance with, or not
subject to costs or liabilities under laws, regulations, rules of common law,
orders and decrees, as in effect as of the date hereof, and any present
judgments and injunctions issued or promulgated thereunder
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relating to pollution or protection of public and employee health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants applicable to it or its business or operations or ownership or use
of its property ("ENVIRONMENTAL LAWS"), other than noncompliance or such costs
or liabilities that would not reasonably be expected to have a Material Adverse
Effect, and (B) possesses all permits, licenses or other approvals required
under applicable Environmental Laws, except where the failure to possess any
such permit, license or other approval would not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect. All
currently pending and, to the knowledge of the Company, threatened proceedings,
notices of violation, demands, notices of potential responsibility or liability,
suits and existing environmental conditions by any governmental authority which
the Company or the Subsidiaries could reasonably expect to result in a Material
Adverse Effect are fully and accurately described in all material respects in
the Preliminary Memorandum and the Final Memorandum. The Company and each
Subsidiary maintains a system of internal environmental management controls
sufficient to provide reasonable assurance of compliance in all material
respects of its business facilities, real property and operations with
requirements of applicable Environmental Laws.
(xxxiv) None of the Company or any of its affiliates (as defined in Rule
501(b) of Regulation D under the Securities Act) has (A) taken, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Initial Notes or (B) sold,
bid for, purchased or paid any person any compensation for soliciting purchases
of the Initial Notes in a manner that would require registration of the Initial
Notes under the Act or paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company in a manner
that would require registration of the Initial Notes under the Securities Act.
(xxxv) The statistical and market-related data and forward-looking
statements (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) included in the Preliminary Memorandum and the Final
Memorandum are based on or derived from sources that the Company believes to be
reliable and accurate in all material respects and represent the Company's good
faith estimates that are made on the basis of data derived from such sources.
(b) Each of the Initial Purchasers, severally and not jointly, represents,
warrants and covenants to the Company that:
(i) Such Initial Purchaser has not offered or sold and, prior to the date
that is six months from the Closing Date, will not offer or sell any Initial
Notes 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) Such Initial Purchaser has complied and will comply with all
applicable provisions of the Financial Services Act of 1986 with respect to
anything done by it in relation to the Initial Notes in, from or otherwise
involving the United Kingdom; and
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(iii) Such Initial Purchaser 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 or sale of Initial Notes to a person who is of a kind described
in Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom such
document may otherwise lawfully be issued or passed on.
Each of the Initial Purchasers understands that the Company and, for
purposes of the opinions to be delivered to the Company pursuant to Section 8
hereof, counsel to the Company and counsel to the Initial Purchasers, will rely
upon the accuracy and truth of the foregoing representations, and each of the
Initial Purchasers hereby consents to such reliance.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of the Initial
Purchasers, each person, if any, who controls any Initial Purchaser within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, the agents, employees, officers and directors of any Initial Purchaser and
the agents, employees, officers and directors of any such controlling person
from and against any and all losses, liabilities, claims, damages and expenses
whatsoever (including, but not limited, to reasonable attorneys' fees and any
and all reasonable expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all reasonable amounts paid in settlement of any claim
or litigation) (collectively, "LOSSES") to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise insofar as such
Losses (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Memorandum or the Final Memorandum, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent, but only to the extent, that any such Loss arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information relating to any Initial Purchaser furnished to the Company by or on
behalf of such Initial Purchaser expressly for use therein. This indemnity will
be in addition to any liability that the Company may otherwise have, including,
but not limited to, liability under this Agreement.
(b) Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, and each of their respective agents, employees, officers and
directors and the agents, employees, officers and directors of any such
controlling person from and against any Losses to which they or either of them
may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Memorandum or the Final Memorandum, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such Loss arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with information relating to the Initial Purchasers furnished
in writing to the Company by the Initial Purchasers expressly for use therein.
The
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Company and the Initial Purchasers acknowledge that the information set forth in
Section 9 is the only information furnished in writing by the Initial Purchasers
to the Company expressly for use in the Preliminary Memorandum or the Final
Memorandum.
(c) Promptly after receipt by an indemnified party under subsection 6(a) or
6(b) above of notice of the commencement of any action, suit or proceeding
(collectively, an "ACTION"), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of the
commencement of such action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have
under this Section 6 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may otherwise
have). In case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement of such action, the
indemnifying party will be entitled to participate in such action, and to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense of such action with counsel satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying parties in connection with the defense
of such action, (ii) the indemnifying parties shall not have employed counsel to
take charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) the named parties to such action
(including any impleaded parties) include such indemnified party and the
indemnifying parties (or such indemnifying parties have assumed the defense of
such action), and such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them that are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such reasonable fees and expenses of counsel shall be borne by the
indemnifying parties. In no event shall the indemnifying party be liable for the
fees and expenses of more than one counsel (together with appropriate local
counsel) at any time for all indemnified parties in connection with any one
action or separate but substantially similar or related actions arising in the
same jurisdiction out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent; provided, however, that such consent may
not be unreasonably withheld. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by paragraph (a) or (b) of this Section 6, then the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days prior
notice of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, 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 proceeding.
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7. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 6 of this Agreement is for any
reason held to be unavailable from the indemnifying party, or is insufficient to
hold harmless a party indemnified under Section 6 of this Agreement, each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such aggregate Losses (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Initial Purchasers, on the other hand, from the offering of
the Initial Notes or (ii) if such allocation is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company, on the one hand,
and the Initial Purchasers, on the other hand, in connection with the statements
or omissions that resulted in such Losses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and the Initial Purchasers, on the other hand, shall be deemed to be
in the same proportion as (x) the total proceeds from the offering of Initial
Notes (net of discounts and commissions but before deducting expenses) received
by the Company, and (y) the total discounts and commissions received by the
Initial Purchasers as set forth in the table on the cover page of the Final
Memorandum. The relative fault of the Company, on the one hand, and the Initial
Purchasers, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall the Initial Purchasers be required to
contribute any amount in excess of the amount by which the total discount and
commissions applicable to the Initial Notes pursuant to this Agreement exceeds
the amount of any damages that the Initial Purchasers have otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission and (ii) 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 fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls the Initial Purchasers within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as the Initial Purchasers, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as the
Company. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made against another party or parties under this
Section 7, notify such party or parties from whom contribution may be sought,
but the failure to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 7 or otherwise, except to the extent that it has
been prejudiced in any material respect by such failure; provided, however, that
no additional notice shall be required with respect to any action for which
notice has been given under Section 6 for purposes of indemnification. Anything
in this section to the contrary notwithstanding, no party shall be liable for
contribution with respect to any action or claim settled without its written
consent, provided, however, that such written consent was not unreasonably
withheld.
8. Conditions of Initial Purchasers' Obligations. The obligations of the
Initial Purchasers to purchase and pay for the Initial Notes, as provided for in
this Agreement, shall be subject to satisfaction of the following conditions
prior to or concurrently with such purchase:
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(a) All of the representations and warranties of the Company contained in
this Agreement shall be true and correct, or true and correct in all material
respects where such representations and warranties are qualified by references
to materiality or Material Adverse Effect or similar terms, on the date of this
Agreement and, in each case after giving effect to the transactions contemplated
hereby, on the Closing Date, except that if a representation and warranty is
made as of a specific date, and such date is expressly referred to therein, such
representation and warranty shall be true and correct (or true and correct in
all material respects, as applicable) as of such date. The Company shall have
performed or complied with all of the agreements and covenants contained in this
Agreement and required to be performed or complied with by them at or prior to
the Closing Date.
(b) The Final Memorandum shall have been printed and copies distributed to
the Initial Purchasers not later than 5:00 p.m., New York City time, on the day
following the date of this Agreement or at such later date and time as the
Initial Purchasers may determine. No stop order suspending the qualification or
exemption from qualification of the Initial Notes in any jurisdiction shall have
been issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency that
would, as of the Closing Date, prevent the issuance of the Initial Notes or
consummation of the Exchange Offer; except as disclosed in the Preliminary
Memorandum and the Final Memorandum, no action, suit or proceeding shall have
been commenced and be pending against or affecting or, to the best knowledge of
the Company, threatened against the Company and/or any Subsidiary before any
court or arbitrator or any governmental body, agency or official that, if
adversely determined, would reasonably be expected to have a Material Adverse
Effect; and no stop order preventing the use of the Preliminary Memorandum or
the Final Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Securities Act shall have been
issued.
(d) The Initial Purchasers shall have received certificates, dated the
Closing Date, signed by two authorized officers of the Company confirming, as of
the Closing Date, the matters set forth in paragraphs (a) and (c) of this
Section 8 and the last sentence of paragraph (b) of this Section 8.
(e) The Initial Purchasers shall have received on the Closing Date an
opinion of Haskell Slaughter & Young, L.L.C., counsel for the Company, dated the
Closing Date and addressed to the Initial Purchasers to the effect that:
(i) Each of the Company and those subsidiaries that constitute "significant
subsidiaries" under Rule 1-02(w) of Regulation S-X (the "SIGNIFICANT
SUBSIDIARIES") has been incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation.
(ii) Each of the Preliminary Memorandum and the Final Memorandum has been
prepared by the Company solely for use by the Initial Purchasers in connection
with the Exempt Resales. To the best of such counsel's knowledge, no order or
decree preventing the use of the Preliminary Memorandum or the Final Memorandum
or any amendment or supplement thereto, or asserting that the transactions
contemplated by this Agreement are
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subject to the registration requirements of the Securities Act has been issued
and no proceeding for that purpose has been commenced or is pending or, is
contemplated.
(iii) The Incorporated Documents heretofore filed were filed in a timely
manner and, when they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in all material
respects to the requirements of the Exchange Act.
(iv) The Indenture has been duly and validly authorized by the Company and,
assuming due authorization, execution, delivery and performance thereof by the
Trustee, is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally, and subject to the applicability of general principles of equity, and
conforms in all material respects to the description thereof in the Preliminary
Memorandum and the Final Memorandum.
(v) The Initial Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally, and subject to
the applicability of general principles of equity, and the Initial Notes will
conform in all material respects to the description thereof in the Preliminary
Memorandum and the Final Memorandum.
(vi) All of the issued and outstanding shares of capital stock of each of
the Significant Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company, free and clear of any
adverse claims; all of the issued and outstanding partnership interests
representing ownership in the Controlled Entities have been duly authorized and,
to the extent material to the business, operations or financial condition of the
Company, the Significant Subsidiaries and the Controlled Entities taken as a
whole, have been validly issued, and all such the partnership interests held of
record by the Company are owned free and clear of any adverse claims, except
such claims that would not have a Material Adverse Effect on the business,
operations or financial condition of the Company, the Significant Subsidiaries
and Controlled Entities taken as a whole.
(vii) Each of the Company and the Significant Subsidiaries has full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Preliminary Memorandum and the Final
Memorandum; and each of the Company and the Significant Subsidiaries is duly
qualified to do business as a foreign corporation, and is in good standing in
all jurisdictions in the United States, if any, in which it is required to be so
qualified and in which the failure so to qualify would have a Material Adverse
Effect on the Company, the Subsidiaries and Controlled Entities, taken as a
whole;
(viii) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against the Company, any
Significant Subsidiary or any
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Controlled Entity, or to which the Company, any Significant Subsidiary or any
Controlled Entity, or any of their property, is subject, which would be required
to be disclosed in the Preliminary Memorandum, the Final Memorandum or both (or
any amendment or supplement thereto) if the Preliminary Memorandum and the Final
Memorandum were prospectuses included in a registration statement on Form S-1
under the Securities Act, other than those disclosed therein; and to the best
knowledge of such counsel after reasonable inquiry, neither the Company, any
Significant Subsidiary nor any Controlled Entity is in violation of any law,
ordinance, administrative or governmental rule or regulation applicable to the
Company, any Significant Subsidiary or any Controlled Entity, except for
violations, if any, which in the aggregate do not have a Material Adverse
Effect.
(ix) Neither the Company nor any Significant Subsidiary or Controlled
Entity is in violation of its respective certificate or articles of
incorporation or bylaws, or other organizational documents, and, to the best
knowledge of such counsel after reasonable inquiry, neither the Company nor any
Significant Subsidiary or Controlled Entity is in default in the performance of
any material obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness, which default could have a
Material Adverse Effect, except as may be disclosed in the Preliminary
Memorandum or the Final Memorandum (or any amendment or supplement thereto).
(x) Each of this Agreement and the Registration Rights Agreement has been
duly authorized by the Company and has been duly executed and delivered by the
Company and, assuming due authorization, execution, delivery and performance
thereof by the Initial Purchasers, is a valid and binding agreement of the
Company, enforceable in accordance with its respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally and subject to the applicability of
general principles of equity, and except as enforcement of rights to indemnity
and contribution may be limited by applicable law.
(xi) Each of the Company, the Significant Subsidiaries and the Controlled
Entities holds all material permits, licenses, certificates of need and other
approvals or authorizations of and from governmental regulatory officials and
bodies necessary to entitle it to own its properties and conduct its business as
described in the Preliminary Memorandum and the Final Memorandum, or to receive
reimbursement under Medicare (if represented in the Preliminary Memorandum or
the Final Memorandum as being Medicare-certified), except where the lack of such
approval or authorization would not have a Material Adverse Effect.
(xii) No holder of any security of the Company (other than holders of the
Initial Notes) has any right to request or demand registration of any security
of the Company because of the consummation of the transactions contemplated by
this Agreement or the Registration Rights Agreement.
(xiii) When the Initial Notes are issued and delivered pursuant to this
Agreement, such Initial Notes will not be of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as any security of the Company that
is listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
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(xiv) To the best of such counsel's knowledge after reasonable inquiry,
neither the Company nor any affiliate (as defined in Rule 501(b) of Regulation D
under the Securities Act) of the Company has directly, or through any agent
(provided that no representation is made as to the Initial Purchasers or any
person acting on their behalf), (A) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the offering and sale of the
Initial Notes in a manner that would require the registration of the Initial
Notes under the Securities Act or (B) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with the offering of the Initial Notes.
(xv) Except as otherwise provided in the Indenture, the Company is not
required to deliver the information specified in Rule 144A(d)(4) in connection
with the offering and resale of the Initial Notes by the Initial Purchasers.
(xvi) Assuming (A) that any Eligible Purchaser who buys the Initial Notes
in the Exempt Resales is a QIB or a person other than a U.S. person outside the
United States in reliance on Regulation S and (B) the accuracy of the
representations of the Initial Purchasers and those of the Company in this
Agreement regarding the absence of general solicitation in connection with the
Exempt Resales, no registration of the Initial Notes under the Securities Act is
required for the sale of the Initial Notes as contemplated in this Agreement or
for the Exempt Resales and no qualification of the Indenture under the Trust
Indenture Act is required in connection with the offer and sale of the Initial
Notes contemplated by this Agreement or in connection with the Exempt Resales.
(xvii) The descriptions in the Preliminary Memorandum and the Final
Memorandum of statutes, governmental regulations, agreements, contracts, leases
and other documents are accurate and fairly present the information that would
be required to be presented therein if the Preliminary Memorandum and the Final
Memorandum were prospectuses included in a registration statement on Form S-1
under the Securities Act; and, to the best of such counsel's knowledge, there
are no statutes, governmental regulations, agreements, contracts, leases or
documents of a character required to be described or referred to in the
Preliminary Memorandum or the Final Memorandum (or any amendment or supplement
thereto) that are not either described or referred to therein or filed as an
exhibit to the Preliminary Memorandum or the Final Memorandum, if the
Preliminary Memorandum and the Final Memorandum were prospectuses included in a
registration statement on Form S-1 under the Securities Act.
(xviii) Neither the offer, sale or delivery of the Initial Notes, the
execution, delivery or performance of this Agreement and the Indenture,
compliance by the Company with the provisions of this Agreement and the
Indenture, nor consummation by the Company of the transactions contemplated by
this Agreement and the Indenture, conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate or articles
of incorporation or bylaws, or other organizational documents, of the Company,
any Significant Subsidiary or any Controlled Entity or any agreement, indenture,
lease or other instrument to which the Company, any Significant Subsidiary or
any Controlled Entity is a party or by which any of them or any of their
respective properties is bound, which is known to such counsel after reasonable
inquiry, or will result in the creation or imposition of any lien, charge or
20
<PAGE>
encumbrance upon any property or assets of the Company, any Significant
Subsidiary or any Controlled Entity.
(xix) The Exchange Notes have been duly authorized by the Company and, when
executed by the Company and authenticated in accordance with the terms of the
Registration Rights Agreement, the Exchange Offer and the Indenture, the
Exchange Notes will be legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except that enforceability of the Exchange Notes
may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity and the discretion of the court
before which any proceedings therefor may be brought.
(xx) A New York court would apply the substantive law of the State of New
York in construing the Initial Notes and the Indenture and in ascertaining the
validity of the payment of interest and the permissible rate of interest on the
Initial Notes, and would hold that such substantive law of the State of New York
governs the rights and obligations of the parties to the Initial Notes and the
Indenture.
(xxi) A New York court applying the substantive law of the State of New
York would hold that the payment of interest on the Initial Notes and the rate
of interest provided pursuant to the Indenture with respect to the Initial Notes
do not violate the usury laws of the State of New York.
(xxii) An Alabama court should apply the substantive law of the State of
New York in construing the Indenture and the Initial Notes and in ascertaining
the validity of the payment of interest and the rate of interest provided
pursuant to the Indenture with respect to the Initial Notes, and should hold
that New York law governs the rights and obligations of the parties to the
Initial Notes and the Indenture.
(xxiii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated herein, except such as may be required under the Blue Sky or
securities laws of any jurisdiction in connection with the purchase and sale of
the Initial Notes by the Initial Purchasers and such other approvals as have
been obtained.
Such counsel shall also state that nothing has come to their attention that
would lead them to believe that (i) Preliminary Memorandum as of its date or the
Final Memorandum as of its date and as of the Closing Date (including the
Incorporated Documents but not including the financial statements and supporting
schedules, upon which such counsel need express no opinion), contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or (ii) any
amendment or supplement to the Final Memorandum (including the Incorporated
Documents but not including the financial statements and supporting schedules,
upon which such counsel need express no opinion), as of its date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
21
<PAGE>
In rendering the opinions concerning valid and binding obligations of the
Company and the enforceability thereof set forth in paragraph (iv), (v), (x) and
(xix) above and the opinions set forth in paragraphs (xx) and (xxi) above, such
counsel may rely upon an opinion dated the Closing Date of Winthrop, Stimson,
Putnam & Roberts as to laws of the State of New York, provided that (1) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to each of the Initial Purchasers, in form and
substance satisfactory to them and their counsel, and (2) counsel for the
Company states in their opinion that they believe that they and the Initial
Purchasers are justified in relying thereon. In providing the statement in the
preceding paragraph, such counsel may state that they have participated in
conferences with officers and representatives of the Company and with its
independent public accountants regarding the content of the Preliminary
Memorandum and the Final Memorandum, but have not independently verified the
statements made in the Preliminary Memorandum and the Final Memorandum. In
addition, the opinions set forth in paragraphs (iii), (vi), (vii), (ix), (xi)
and (xvii) may be addressed in an opinion of William W. Horton, Senior Vice
President of the Company, dated the Closing Date and addressed to the Initial
Purchasers.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion of Pillsbury Madison & Sutro LLP, counsel to the Initial Purchasers,
dated the Closing Date and addressed to the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received a "comfort letter" from
Ernst & Young LLP, independent public accountants for the Company, dated the
date of this Agreement and addressed to the Initial Purchasers, in form and
substance satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers. In addition, the Initial Purchasers shall have received a
"bring-down comfort letter" from Ernst & Young LLP, dated as of the Closing Date
and addressed to the Initial Purchasers, in form and substance satisfactory to
the Initial Purchasers and counsel to the Initial Purchasers.
(h) The Company shall have entered into the Indenture and the Initial
Purchasers shall have received copies, conformed as executed, thereof.
(i) The Company shall have entered into the Registration Rights Agreement
and the Initial Purchasers shall have received counterparts, conformed as
executed, thereof.
(j) All government authorizations required in connection with the issue and
sale of the Initial Notes as contemplated under this Agreement and the
performance of the Company's obligations hereunder, under the Indenture and
under the Initial Notes shall be in full force and effect.
(k) The Initial Purchasers shall have been furnished with wiring
instructions for the application of the proceeds of the Initial Notes in
accordance with this Agreement and such other information as they may reasonably
request.
(l) Pillsbury Madison & Sutro LLP, counsel to the Initial Purchasers, shall
have been furnished with such documents as they may reasonably request to enable
them to render the opinion described in Section 8(f).
(m) The Initial Notes shall be eligible for trading in PORTAL upon
issuance.
(n) All agreements set forth in the letter of representations of the
Company to DTC relating to the approval of the Initial Notes by DTC for
"book-entry" transfer shall have been complied with.
22
<PAGE>
If any of the conditions specified in this Section 8 shall not have been
fulfilled when and as required by this Agreement to be fulfilled (or waived by
the Initial Purchasers), this Agreement may be terminated by the Initial
Purchasers on notice to the Company at any time at or prior to the Closing Date,
and such termination shall be without liability of any party to any other party.
Notwithstanding any such termination, the provisions of Sections 6, 7, 9, 10, 11
and 12(d) shall remain in effect.
9. Initial Purchasers' Information. The Company and the Initial Purchasers
acknowledge that the statements with respect to the offer and sale of the
Initial Notes set forth in (i) the last paragraph of the cover page and (ii) the
first paragraph under the caption "Important Notice to Readers" and the seventh
paragraph under the caption "Plan of Distribution" in the Preliminary Memorandum
and the Final Memorandum constitute the only information furnished in writing by
the Initial Purchasers expressly for use in the Preliminary Memorandum or the
Final Memorandum.
10. Expenses; Reimbursements. The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the performance by it
of its obligations hereunder: (i) the preparation, printing or reproduction of
the Preliminary Memorandum and the Final Memorandum, this Agreement and the
Indenture; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Preliminary Memorandum and the Final Memorandum, the Incorporated Documents,
and all amendments or supplements to any of them as may be reasonably requested
for use in connection with the offering and sale of the Initial Notes; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Initial Notes, including any stamp taxes in connection with the original
issuance and sale of the Initial Notes; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental Blue Sky Memoranda,
if any, and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Initial Notes; (v) the
qualification of the Initial Notes for offer and sale under the securities or
Blue Sky laws of the several states of the United States (including the
reasonable fees, expenses and disbursements of counsel for the Initial
Purchasers relating to the preparation, printing or reproduction, and delivery
of the preliminary and supplemental Blue Sky Memoranda, if any, and such
qualification); (vi) the performance by the Company of its obligations under the
Registration Rights Agreement; and (vii) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company. The Company hereby agrees that it will pay in full on
the Closing Date the fees and expenses referred to in clause (v) of this Section
10(a) by delivering to counsel for the Initial Purchasers on such date a check
payable to such counsel in the requisite amount.
11. Survival Of Representations And Agreements. All representations and
warranties, covenants and agreements contained in this Agreement, including the
agreements contained in Sections 10 and 12(d), the indemnity agreements
contained in Section 6 and the contribution agreements contained in Section 7
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchasers or any controlling
person thereof or by or on behalf of the Company or any controlling person
thereof, and shall survive delivery of and payment for the Initial Notes to and
by the Initial Purchasers. The agreements contained in Sections 6, 7, 9, 10 and
12(d) shall survive the termination of this Agreement, including pursuant to
Section 12.
12. Effective Date Of Agreement; Termination; Default by Initial Purchaser.
(a) This Agreement shall become effective upon execution and delivery of a
counterpart hereof by each of the parties hereto.
23
<PAGE>
(b) The Initial Purchasers shall have the right to terminate this Agreement
at any time prior to the Closing Date by notice to the Company from the Initial
Purchasers, without liability (other than with respect to Sections 6 and 7) on
the Initial Purchasers' part to the Company if, on or prior to such date, (i)
the Company shall have failed, refused or been unable to perform in any material
respect any agreement on its part to be performed under this Agreement when and
as required, (ii) any other condition to the obligations of the Initial
Purchasers under this Agreement to be fulfilled by the Company pursuant to
Section 8 is not fulfilled when and as required in any material respect, (iii)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, or minimum prices shall have been established thereon by the
Commission, or by such exchange or other regulatory body or governmental
authority having jurisdiction, (iv) a general banking moratorium shall have been
declared by federal or New York authorities, or if a moratorium to foreign
exchange trading by major international banks or persons shall have been
declared, (v) there is an outbreak or escalation of hostilities or other
national or international calamity on or after the date of this Agreement, or if
there has been a declaration by the United States of a national emergency or war
or other national or international calamity or crisis (economic, political,
financial or otherwise) which affects the U.S. and international markets, making
it, in the Initial Purchasers' judgment, impracticable to proceed with the
offering or delivery of the Initial Notes on the terms and in the manner
contemplated in the Final Memorandum or (vi) there shall have been such a
material adverse change in general economic, political or financial conditions
or the effect (or potential effect if the financial markets in the United States
have not yet opened) of international conditions on the financial markets in the
United States shall be such, as in the Initial Purchasers' judgment, to make it
inadvisable or impracticable to proceed with the offering or delivery of the
Initial Notes on the terms and in the manner contemplated in the Final
Memorandum.
(c) Any notice of termination pursuant to this Section 12 shall be given at
the address specified in Section 13 below by telephone, telex, telephonic
facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to clause (i) or (ii) of
Section 12(b), or if the sale of the Initial Notes provided for in this
Agreement is not consummated because of any refusal, inability or failure on the
part of the Company to satisfy in any material respect any condition to the
obligations of the Initial Purchasers set forth in this Agreement to be
satisfied on its part or because of any refusal, inability or failure on the
part of the Company to perform in any material respect any agreement in this
Agreement or comply in any material respect with any provision of this
Agreement, the Company will, subject to demand by the Initial Purchasers,
reimburse the Initial Purchasers for all of their reasonable out-of-pocket
expenses (including the fees and expenses of the Initial Purchasers' counsel)
incurred in connection with this Agreement.
(e) If any one or more Initial Purchasers shall fail to purchase and pay
for any of the Initial Notes agreed to be purchased by such Initial Purchaser
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Initial Purchasers shall be obligated severally and not jointly to purchase (in
the respective proportions which the principal amount of Initial Notes set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Initial Notes set forth opposite the names of all the remaining
Initial Purchasers) the Initial Notes which the defaulting Initial Purchaser or
Initial Purchasers agreed to purchase but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Initial Notes which the
defaulting Initial Purchaser or Initial Purchasers agreed to purchase but failed
to purchase exceeds 10% of the aggregate principal amount of Initial Notes set
forth
24
<PAGE>
in Schedule I hereto, the remaining Initial Purchasers shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Initial Notes, and if such nondefaulting Initial Purchasers do not purchase all
the Initial Notes, this Agreement will terminate without liability to any
nondefaulting Initial Purchaser or the Company. In the event of a default by any
Initial Purchaser as set forth in this Section 12(e), the Closing Date shall be
postponed for such period, not to exceed five business days, as the Initial
Purchasers shall determine in order that the required changes in the Final
Memorandum or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Initial Purchaser of
its liability, if any, to the Company.
13. Notices. All communications with respect to or under this Agreement,
except as may be otherwise specifically provided in this Agreement, shall be in
writing and, if sent to the Initial Purchasers, shall be mailed, delivered, or
telexed, telegraphed or telecopied and confirmed in writing to UBS Warburg LLC,
677 Washington Boulevard, Stamford, Connecticut 06912, Attention: High Yield
Capital Markets, Telephone: (203) 719-1556, Facsimile: (203) 719-5753; and if
sent to the Company, shall be mailed, delivered or telexed, telegraphed or
telecopied and confirmed in writing to HEALTHSOUTH Corporation, One HealthSouth
Parkway, Birmingham, Alabama 35243, Attention: William W. Horton, Telephone:
(205) 969-4977, Facsimile: (205) 969-4730.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged by telecopier machine, if telecopied; and one
business day after being timely delivered to a next-day air courier.
14. Parties. This Agreement shall inure solely to the benefit of, and shall
be binding upon, the Initial Purchasers, the Company and the controlling persons
and agents referred to in Sections 6 and 7, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Notes from the
Initial Purchasers.
15. Construction. This Agreement shall be construed in accordance with the
internal laws of the State of New York (without giving effect to any provisions
thereof relating to conflicts of law).
16. Captions. The captions included in this Agreement are included solely
for convenience of reference and are not to be considered a part of this
Agreement.
17. Counterparts. This Agreement may be executed in various counterparts
that together shall constitute one and the same instrument.
25
<PAGE>
If the foregoing Purchase Agreement correctly sets forth the understanding
among the Company and the Initial Purchasers, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company and the Initial Purchasers.
HEALTHSOUTH CORPORATION
By: /s/ William W. Horton
-------------------------------
William W. Horton
Senior Vice President
Confirmed and accepted as of
the date first above written:
UBS WARBURG LLC
DEUTSCHE BANK SECURITIES INC.
CHASE SECURITIES INC.
FIRST UNION SECURITIES, INC.
By: UBS WARBURG LLC
By: /s/ Michael Y. Leder
------------------------------
Michael Y. Leder
Managing Director
Leveraged Finance
By: /s/ David W. Barth
------------------------------
David W. Barth
Director
Leveraged Finance
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
PRINCIPAL AMOUNT OF
INITIAL PURCHASER INITIAL NOTES
-------------------------------------------------------------------------------
<S> <C>
UBS Warburg LLC $148,750,000
-------------------------------------------------------------------------------
Deutsche Bank Securities Inc. $113,750,000
-------------------------------------------------------------------------------
Chase Securities Inc. $70,000,000
-------------------------------------------------------------------------------
First Union Securities, Inc. $17,500,000
-------------------------------------------------------------------------------
Total $350,000,000
-------------------------------------------------------------------------------
</TABLE>
