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EXHIBIT 1
SUNRISE ASSISTED LIVING, INC.
5 1/2% Convertible Subordinated Notes due 2002
PURCHASE AGREEMENT
June 2, 1997
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
c/▇ ▇▇▇▇▇▇▇▇▇ Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Sunrise Assisted Living, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation and Alex. ▇▇▇▇▇ & Sons Incorporated (each, an "Initial Purchaser"),
$130,000,000 aggregate principal amount of its 5 1/2% Convertible Subordinated
Notes due 2002 (the "Firm Notes"). The Company also proposes to issue and sell
to the Initial Purchasers not more than an additional $20,000,000 aggregate
principal amount of its 5 1/2% Convertible Subordinated Notes due 2002 (the
"Additional Notes"), if requested by the Initial Purchasers as provided in
Section 1 hereof. The Firm Notes and the Additional Notes are herein
collectively referred to as the "Notes." The Notes are to be issued pursuant
to an indenture (the "Indenture") to be dated as of June 6, 1997 between the
Company and First Union National Bank, as trustee (the "Trustee"), pursuant to
which the Notes, as provided therein, will be convertible at the option of the
holders thereof into shares of the Company's common stock, par value $.01 per
share (the "Common Stock"). The Notes and the Common Stock issuable upon
conversion thereof are herein collectively referred to as the "Securities".
The Securities and the Indenture are more fully described in the Final Offering
Memorandum (as hereinafter defined). Capitalized terms used in the Final
Offering Memorandum without definition herein have the respective meanings
specified in the Final Offering Memorandum.
The Securities will be offered and sold to the Initial Purchasers
pursuant to an exemption from the registration requirements of the Securities
Act of 1933, as amended (collectively with the rules and regulations of the SEC
thereunder, the "Securities Act"). The Initial Purchasers have advised the
Company that they will offer and sell the Securities purchased by them
hereunder in accordance with
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Section 5 hereof as soon as the Initial Purchasers deem advisable after the
execution and delivery of this Agreement.
In connection with the sale of the Securities, the Company has
prepared an preliminary offering memorandum, dated May 22, 1997 (the
"Preliminary Offering Memorandum"), and a final offering memorandum, dated June
2, 1997 (the "Final Offering Memorandum"). Each of the Preliminary Offering
Memorandum and the Final Offering Memorandum sets forth certain information
concerning the Company and the Securities. The term "Preliminary Offering
Memorandum" and "Final Offering Memorandum" as used herein shall include all
documents incorporated by reference therein. The Company hereby confirms that
it has authorized the use of the Preliminary Offering Memorandum and the Final
Offering Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial Purchasers.
The holders of the Securities will be entitled to the benefits of a
registration rights agreement (the "Registration Rights Agreement"), to be
dated June 6, 1997, between the Company and the Initial Purchasers, in
substantially the form of Exhibit A hereto.
1. Agreements to Sell and Purchase. (a) On the basis of
the representations and warranties contained in this Agreement, and subject to
its terms and conditions, (i) the Company agrees to issue and sell and (ii)
each Initial Purchaser agrees, severally and not jointly, to purchase from the
Company the principal amount of Firm Notes set forth opposite the name of such
Initial Purchaser on Schedule I hereto, at a purchase price of 97.5% of their
principal amount (the "Purchase Price").
(b) On the basis of the representations and warranties
contained in this Agreement, and subject to its terms and conditions, (i) the
Company agrees to issue and sell the Additional Notes and (ii) the Initial
Purchasers shall have the right to purchase, severally and not jointly, the
Additional Notes from the Company at the Purchase Price. Additional Notes may
be purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Notes. The Initial Purchasers may
exercise their right to purchase Additional Notes in whole or in part from time
to time by giving written notice thereof to the Company at any time within 30
days after the date of this Agreement. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation shall give any such notice on behalf of the Initial Purchasers and
such notice shall specify the aggregate principal amount of Additional Notes to
be purchased pursuant to such exercise and the date for payment and delivery
thereof. The date specified in any such notice shall be a business day (i) no
earlier than the Closing Date (as hereinafter defined), (ii) no later than ten
business days after such notice has been given and (iii) no earlier than two
business days after such notice has been given. If any Additional Notes are to
be purchased, each Initial Purchaser, severally and not jointly, agrees to
purchase from the Company the principal amount of Additional Notes which bears
the same proportion to the total principal amount of Additional Notes to be
purchased form the Company as the principal amount of Firm Notes set forth
opposite the name of such Initial Purchaser in Schedule I bears to the total
principal amount of the Firm Notes.
(c) The Company hereby agrees (and the Company shall,
concurrently with the execution of this Agreement, deliver letter agreements
executed by each of the directors and executive officers of the Company,
pursuant to which each such person agrees), not to offer, sell, contract to
sell,
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grant any option to purchase, or otherwise dispose of any Common Stock of the
Company or any securities convertible into or exercisable or exchangeable for
such Common Stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such Common Stock,
for a period of 90 days after the date of the Final Offering Memorandum, other
than (i) as a gift or gifts, provided the donee or donees thereof agree in
writing to be bound by such letter agreement, (ii) transfers to a transferor's
affiliates, as such term is defined in Rule 405 promulgated under the Act,
provided the transferee agrees in writing to be bound by such letter agreement,
or (iii) with the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation. Notwithstanding the foregoing, during such period the
Company (i) may grant stock options (and may issue shares of its Common Stock
upon exercise thereof) pursuant to the Company's 1995 Stock Option Plan, 1996
Directors' Stock Option Plan, 1996 Non-Incentive Stock Option Plan or 1997
Stock Option Plan (collectively, the "Option Plans"), (ii) may issue shares of
Common Stock upon exercise of any of the 450,000 stock options granted to ▇▇▇▇▇
▇. ▇▇▇▇▇▇ outside of the Options Plans, (iii) may issue shares of Common Stock
upon the exercise of the 50,000 warrants outstanding on the date hereof, and
(iv) may issue shares of Common Stock in connection with the Company's
acquisition of assets of, or an ownership interest in, another business or
entity, provided, however, that, without the prior written consent of
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, the Company may not (i)
register the shares of Common Stock referred to in clause (iv) above under the
Securities Act for such 90-day period or (ii) grant any registration rights
with respect to the shares of Common Stock referred to in clause (iv) above
that are exercisable within such 90-day period.
2. Delivery and Payment. (a) Delivery to the Initial
Purchasers of and payment for the Firm Notes shall be made at 10:00 A.M., New
York City time, on June 6, 1997 (the "Closing Date") at the offices of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ or such other
place as you shall designate. The Closing Date and the location of delivery of
and the form of payment for the Firm Notes may be varied by agreement between
you and the Company.
(b) Delivery to the Initial Purchasers of and payment for
any Additional Notes to be purchased by the Initial Purchasers shall be made at
the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇ or such other place as you shall designate, at 10:00 A.M., New York
City time, on the date specified in the exercise notice given by you pursuant
to Section 1(b) (the "Option Closing Date"). Any such Option Closing Date and
the location of delivery of and the form of payment for the Additional Notes
may be varied by agreement between you and the Company.
(c) At or prior to the Closing Date and each Option
Closing Date, if any, the Company shall execute and deliver for authentication
the Notes to be purchased and sold on such date and shall deposit in global
form Notes with the Depositary Trust Company ("DTC") for the account or
accounts of participants in DTC (including Euroclear and CEDEL, as the case may
be) purchasing beneficial interests therein. The Initial Purchasers shall pay
or cause the purchase price for such Notes to be paid to or upon the order of
the Company by wire transfer of same day funds against delivery of such Notes
to or for the respective accounts of the Initial Purchasers. Certificates
evidencing the Notes shall be registered in the name of Cede & Co. as nominee
of DTC or such other name or names and in such authorized denominations as the
Initial Purchasers may request in writing at least two full business days prior
to the Closing Date or the Option Closing Date, as the case may be. The
Company will permit the
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Initial Purchasers to inspect such certificates at the New York offices of
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation at least one full business
day prior to the Closing Date and each Option Closing Date, if any.
3. Agreements. The Company agrees with each Initial
Purchaser that:
(a) The Company will furnish to each Initial Purchaser
and to counsel for the Initial Purchasers, without charge, during the
period referred to in paragraph (b) below, as many copies of the Final
Offering Memorandum and any amendments and supplements thereto as each
Initial Purchaser may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(b) At any time prior to the earlier of the expiration of
nine months after the date of the Final Offering Memorandum and the
date of completion of the sale of the Securities by the Initial
Purchasers, the Company will not amend or supplement the Final
Offering Memorandum if the Initial Purchasers reasonably object to
such amendment or supplement within two business days after receiving
a copy thereof, and if at any time prior to the earlier of the
expiration of nine months after the date of the Final Offering
Memorandum and the date of completion of the sale of the Securities by
the Initial Purchasers, any event occurs as a result of which the
Final Offering Memorandum, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
it should be necessary to amend or supplement the Final Offering
Memorandum to comply with applicable law, the Company will promptly
notify the Initial Purchasers of the same, will prepare and provide to
the Initial Purchasers the proposed amendment or supplement which will
correct such statement or omission or effect such compliance and will
not publish such amendment or supplement if the Initial Purchasers
reasonably object to the publication of such amendment or supplement
within two business days after receiving a copy thereof.
(c) The Company will arrange for the qualification of the
Securities for sale by the Initial Purchasers under the laws of such
jurisdictions, if any, as the Initial Purchasers may reasonably
designate in writing prior to the date of this Agreement and will
maintain such qualifications in effect so long as reasonably required
for the distribution of the Securities, provided, however, that the
Company shall not be required in connection therewith 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 general or unlimited service
of process or taxation in any jurisdiction where it is not now so
subject. The Company will promptly advise the Initial Purchasers of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose and will use all reasonable efforts to have such
suspensions lifted as promptly as practicable.
(d) Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf will, directly or indirectly,
make offers or sales of any Security, or solicit offers to buy any
security, under circumstances that would require the registration of
the Securities under
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the Securities Act, except pursuant to a registered public offering as
provided in the Registration Rights Agreement.
(e) Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf will engage in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities
in the United States, except pursuant to a registered public offering
as provided in the Registration Rights Agreement.
(f) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, the Company will, during any period in which it is not subject to
and in compliance with Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), provide to each holder
of such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Securities Act.
This covenant is intended to be for the benefit of the holders, and
the prospective purchasers designated by such holders, from time to
time of such restricted securities.
(g) 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 Securities, except pursuant to a
registered public offering as provided in the Registration Rights
Agreement, and each of them will comply with the offering restriction
requirements of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(h) The Company will cooperate with the Initial
Purchasers and use all reasonable efforts to permit the Securities to
be eligible for clearance and settlement through The Depository Trust
Company and, with respect to any Securities sold in accordance with
Regulation S under the Securities Act, Cedel Bank and Euroclear.
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, the Company agrees to pay all costs, expenses, fees and
taxes incident to and in connection with: (i) the preparation,
printing, filing and distribution of the Preliminary Offering
Memorandum and the Final Offering Memorandum (including, without
limitation, financial statements and supplements thereto), (ii) the
preparation, printing (including, without limitation, word processing
and duplication costs) and delivery of this Agreement, the
Registration Rights Agreement and the Indenture, all preliminary and
final Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in connection
herewith and with the sale of the Securities by the Initial Purchasers
to certain purchasers as set forth in Section 5 below, (iii) the
issuance and delivery of the Securities, (iv) the registration or
qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states (including, without
limitation, the reasonable fees and disbursements of the Initial
Purchasers' counsel relating to such registration or qualification),
(v) the preparation of certificates for the Securities
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(including, without limitation, printing thereof), (vi) the fees,
disbursements and expenses of the Company's counsel and accountants,
(vii) all expenses and listing fees in connection with the application
for quotation of the Securities on PORTAL, (viii) all fees and
expenses (including fees and expenses of counsel) of the Company in
connection with approval of the Securities by DTC for "book-entry"
transfer and eligibility of settlement of transactions in the
Securities through Euroclear and Cedel Bank and (ix) the performance
by the Company of its other obligations under this Agreement.
(j) The Company will use its best efforts to do and
perform all things required or necessary to be done and performed
under this Agreement by the Company prior to the Closing Date or any
Option Closing Date, as the case may be, and to satisfy all conditions
precedent on its part to the delivery of the Securities.
4. Representations and Warranties of the Company. The
Company represents and warrants to each Initial Purchaser that:
(a) The Preliminary Offering Memorandum and the Final
Offering Memorandum do not, and any supplement or amendment to them
will not, contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties
contained in this paragraphs (a) shall not apply to statements in or
omissions from the Preliminary Offering Memorandum and the Final
Offering Memorandum (or any supplement or amendment thereto) made in
reliance upon and in conformity with information relating to you
furnished to the Company in writing by you expressly for use therein.
No stop order preventing the use of the Preliminary Offering
Memorandum or the Final Offering Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Neither the Company, nor any of its affiliates (as
defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on its or their behalf has,
directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would
require the registration of the Securities under the Securities Act.
(c) No securities of the same class as the Notes have
been issued and sold by the Company within the six-month period
immediately prior to the date hereof.
(d) Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf has engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities
in the United States.
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(e) None of the Company, its Subsidiaries (as hereinafter
defined) or any of its or their affiliates or any person acting on its
or their behalf has engaged or will engage in any directed selling
efforts (as defined in Regulation S) in the United States with respect
to the Securities, and the Company, its subsidiaries and its or their
affiliates and all persons acting on its or their behalf have complied
with and will comply with the offering restriction requirements of
Regulation S.
(f) The Securities satisfy the eligibility requirements
of Rule 144A(d)(3) under the Securities Act.
(g) (i) The Company has agreed to permit the Securities
to be designated PORTAL eligible securities, will pay the requisite
fees related thereto and has been advised by the National Association
of Securities Dealers, Inc. PORTAL Market ("PORTAL") that the
Securities have been designated PORTAL eligible securities in
accordance with the rules and regulations of the National Association
of Securities Dealers, Inc.
(ii) The Company will cause the Common Stock
issuable upon conversion of the Notes to be listed for quotation on
the Nasdaq National Market prior to the 90th day following the latest
date of initial issuance of the Notes.
(h) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement, the Indenture, and the Registration Rights Agreement and to
issue, sell and deliver the Securities as provided herein and therein.
(i) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement
of the Company, enforceable in accordance with its terms except as
rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and except as the enforceability
hereof may be limited by bankruptcy, rehabilitation, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and by general principles of equity.
(j) The Indenture has been duly and validly authorized by
the Company and, when duly executed and delivered by the Company, will
be the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except as the
enforceability thereof may be limited (1) by the effect of (x)
bankruptcy, rehabilitation, insolvency, reorganization, moratorium or
other similar laws nor or hereafter in effect relating to or affecting
the rights and remedies of creditors and (y) general principles of
equity, whether enforcement is considered in a proceeding in equity or
at law, and the discretion of the court before which any proceedings
therefor may be brought and (2) to the extent that the waiver
contained in Section 4.9 of the Indenture may be unenforceable.
(k) The Notes have been duly and validly authorized for
issuance by the Company and, when issued and authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Initial Purchasers in accordance with the terms of this
Agreement, will be
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the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and entitled to the
benefits of the Indenture except (1) as the enforceability thereof may
be limited by bankruptcy, rehabilitation, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and general principles of equity, and (2) to the extent that the
waiver contained in Section 4.9 of the Indenture may be deemed
unenforceable. The Indenture conforms in all material respects to the
description thereof contained in the Final Offering Memorandum.
(l) The Notes are convertible into Common Stock in
accordance with the terms of the Indenture; the shares of Common Stock
initially issuable upon conversion of the Notes have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable and will conform to the description thereof contained in
the Final Offering Memorandum; the Company has the authorized and
outstanding capital stock as set forth in the Final Offering
Memorandum; and the stockholders of the Company have no preemptive
rights with respect to the Notes or the Common Stock issuable upon
conversion of the Notes.
(m) The Registration Rights Agreement has been duly and
validly authorized by the Company and, when duly executed and
delivered by the Company, will be the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms except as the enforceability thereof may be
limited by (i) bankruptcy, rehabilitation, insolvency, reorganization,
moratorium or other similar laws affecting creditor's rights
generally, (ii) general principles of equity, or (iii) the
enforceability of rights to indemnification and contribution
thereunder by federal or state securities laws. The Registration
Rights Agreement conforms in all material respects to the description
thereof in the Final Offering Memorandum.
(n) The (i) issuance and sale of the Securities by the
Company, (ii) execution, delivery and performance by the Company of
this Agreement, the Indenture and the Registration Rights Agreement,
(iii) compliance by the Company with all the provisions hereof and
with the provisions of the Indenture and the Registration Rights
Agreement and (iv) the consummation by the Company of the transactions
contemplated hereby and by the Indenture and the Registration Rights
Agreement will not require any consent, approval, authorization or
other order of any court, regulatory body, administrative agency or
other governmental body (except as may be required under the federal
securities laws or the securities, blue sky or real estate syndication
laws of the various states) and will not conflict with, or constitute
a breach or a violation of any of the terms or provisions of, or a
default under, the charter, by-laws, partnership agreement, operating
agreement or other governing documents of the Company or any of its
Subsidiaries, or any material agreement, indenture, debenture, note or
any other evidence of indebtedness or other instrument to which it or
any of its subsidiaries is a party or by which it or any of its
subsidiaries is bound or to which any of their respective properties
is subject or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any
of its subsidiaries or their respective property, except as disclosed
in the Final Offering Memorandum and except as rights to indemnity and
contribution hereunder may be limited by applicable law.
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(o) The Company is subject to and in material compliance
with the reporting requirements of Section 13 or Section 15(d) of the
Exchange Act.
(p) The Company is not required to deliver the
information specified in Rule 144A(d)(4) in connection with the resale
by the Initial Purchasers of the Securities as set forth in Section 4
hereof.
(q) The Company has not paid or agreed to pay to any
person any compensation for soliciting another to purchase any
securities of the Company (except as contemplated by this Agreement).
(r) It is not necessary in connection with the offer,
sale and delivery of the Securities in the manner contemplated by this
Agreement and the Final Offering Memorandum to register the Securities
under the Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(s) The Company has been duly organized, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Final Offering Memorandum, and is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company and the Subsidiaries
(hereafter defined), taken as a whole.
(t) All of the consolidated corporation, partnerships and
limited liability companies in which the Company has a direct or
indirect ownership interest are listed in Annex II to this Agreement
(collectively, the "Subsidiaries"). The Company's ownership interest
in each of the facilities listed in the Final Offering Memorandum
under the caption "Business-- Owned Facilities" is owned by the
Company directly or indirectly through one or more Subsidiaries and
the Company's direct or indirect percentage ownership interests in
such facilities are as described under such caption.
(u) Each Subsidiary that is a corporation (a "Corporate
Subsidiary") has been duly organized, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Final Offering Memorandum, and is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company and the
Subsidiaries, taken as a whole. All of the outstanding shares
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of capital stock of each Corporate Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable, were
issued and sold in compliance with all applicable federal and state
securities laws, were not issued in violation of or subject to any
preemptive or similar rights, and are owned by the Company directly,
or indirectly through one of the other Subsidiaries, free and clear of
any security interest, claim, lien, encumbrance or adverse interest of
any nature, except (i) for those encumbrances disclosed in the Final
Offering Memorandum, (ii) for interests or liens held by others as
security for indebtedness of the Company or any Subsidiary disclosed
in the Final Offering Memorandum and (iii) for transfer restrictions
under applicable federal and state securities and real estate
syndication laws.
(v) Each Subsidiary that is a limited partnership (a
"Limited Partnership Subsidiary") has been duly organized, is validly
existing as a limited partnership in good standing under the laws of
its jurisdiction of organization and has the limited partnership power
and authority to own, lease and operate its properties and to conduct
its business as described in the Final Offering Memorandum, and is
duly qualified and is in good standing (where applicable) as a foreign
limited partnership authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a
whole. All outstanding limited partnership interests in the Limited
Partnership Subsidiaries were issued and sold in compliance with the
applicable limited partnership agreements of such Limited Partnership
Subsidiaries and all applicable federal and state securities laws, and
the limited partnership interests therein held directly or indirectly
by the Company are owned free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature, except (i)
for those encumbrances disclosed in the Final Offering Memorandum,
(ii) for interests or liens held by others as security for
indebtedness of the Company or any Subsidiary disclosed in the Final
Offering Memorandum, (iii) to the extent provided in the applicable
limited partnership agreements of such Limited Partnership
Subsidiaries and (iv) for transfer restrictions under applicable
federal and state securities and real estate syndication laws. To the
knowledge of the Company, each limited partnership agreement pursuant
to which the Company or a Subsidiary holds a partnership interest in a
Limited Partnership Subsidiary is in full force and effect and
constitutes the legal, valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with the terms
thereof, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles. There
has been no material breach of or default under, and no event which
with notice or lapse of time would constitute a material breach of or
default under, such limited partnership agreements by the Company or
any Subsidiary or, to the Company's knowledge, any other party to such
agreements.
(w) Each Subsidiary that is a limited liability company
(an "LLC Subsidiary") has been duly organized, is validly existing as
a limited liability company in good standing under the laws of its
jurisdiction of organization and has the limited liability company
power and authority to own, lease and operate its properties and to
conduct its business as described in the Final
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Offering Memorandum, and is duly qualified and is in good standing
(where applicable) as a foreign limited liability company authorized
to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole. All outstanding
membership interests in the LLC Subsidiaries were issued and sold in
compliance with the applicable operating agreements of such LLC
Subsidiaries and all applicable federal and state securities laws, and
the membership interests therein held directly or indirectly by the
Company are owned free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature, except (i) for
those encumbrances disclosed in the Final Offering Memorandum, (ii)
for interests or liens held by others as security for indebtedness of
the Company or any Subsidiary disclosed in the Final Offering
Memorandum, (iii) to the extent provided in the applicable operating
agreements of such LLC Subsidiaries and (iv) for transfer restrictions
under applicable federal and state securities and real estate
syndication laws. To the knowledge of the Company, each operating
agreement pursuant to which the Company or a Subsidiary holds a
membership interest in an LLC Subsidiary is in full force and effect
and constitutes the legal, valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with the terms
thereof, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles. There
has been no material breach of or default under, and no event which
with notice or lapse of time would constitute a material breach of or
default under, such operating agreements by the Company or any
Subsidiary or, to the Company's knowledge, any other party to such
agreements.
(x) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive rights, rights
of first refusal or other similar rights (in each case created by
statute or under the Company's certificate of incorporation or bylaws
or any agreement to which the Company is a party) that have not been
waived or satisfied.
(y) The authorized capital stock of the Company conforms
in all material respects as to legal matters to the description
thereof contained in the Final Offering Memorandum.
(z) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter, by-laws, partnership agreement,
operating agreement or other governing document(s). Neither the
Company nor any of the Subsidiaries is in default in the performance
of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any other
agreement, indenture or instrument material to the conduct of the
business of the Company and its Subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound,
except for any such defaults that, individually or in the aggregate,
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 and the Subsidiaries, taken as a whole.
Neither
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the Company nor any of the Subsidiaries is in material violation of
any order, writ, injunction, judgment or decree of any court,
government or governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of the Subsidiaries or over any
of their respective property. Neither the Company nor any of the
Subsidiaries is in violation of any law, ordinance, rule or regulation
applicable to the Company or any of the Subsidiaries, which violation
would have a material adverse effect on the condition (financial or
other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(aa) Except as otherwise set forth in the Final Offering
Memorandum, there are no material legal or governmental proceedings
pending, or to the Company's knowledge, threatened or contemplated to
which the Company or any of the Subsidiaries is a party or of which
any of their respective property is the subject that (i) would be
required to be set forth in a registration statement on Form S-3, (ii)
could reasonably be expected to result in a material adverse change in
the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company and the
Subsidiaries, taken as a whole or (iii) could reasonably be expected
to adversely effect the issuance or validity of the Securities to be
issued and sold by the Company hereunder. No contract or document of
a character that would be required to be described in the Final
Offering Memorandum if the Final Offering Memorandum were a prospectus
included in a registration statement on Form S-3 under the Securities
Act is not so described.
(bb) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case could
reasonably be expected to result in any material adverse change in the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries,
taken as a whole.
(cc) Except as described in the Final Offering Memorandum,
the Company and the Subsidiaries have operated and currently operate
their business in conformity with all applicable laws, rules and
regulations of each jurisdiction in which it is conducting business,
except where the failure to be so in compliance 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 and the Subsidiaries, taken as a whole. Each of the
Company and the Subsidiaries has such permits, licenses, franchises
and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its business; the Company and
each of the Subsidiaries has fulfilled and performed all of its
material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment
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of the rights of the holder of any such permit; and, except as
described in the Final Offering Memorandum, such permits contain no
restrictions that are materially burdensome to the Company or any of
the Subsidiaries. The Company and the Subsidiaries are not aware of
any existing or imminent matter which could reasonably be expected to
materially and adversely impact their operations or business prospects
other than as disclosed in the Final Offering Memorandum.
(dd) Except as otherwise set forth in the Final Offering
Memorandum or such as are not material to the business, prospects,
financial condition or results of operation of the Company and the
Subsidiaries, taken as a whole, the Company and each of the
Subsidiaries has good and marketable title, free and clear of all
liens, claims, encumbrances and restrictions except liens for taxes
not yet due and payable, to all property and assets described in the
Final Offering Memorandum as being owned by it (other than stock or
other ownership interests in Subsidiaries, which are the subject of
the representations in paragraphs (u) through (w) above). The
agreements to which the Company or any of the Subsidiaries is a party
described in the Final Offering Memorandum are valid agreements,
enforceable by the Company and the Subsidiaries (as applicable),
except as the enforcement thereof may be limited by applicable
bankruptcy, rehabilitation, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally or by general equitable principles and, to the Company's
knowledge, the other contracting party or parties thereto are not in
material breach or material default under any of such agreements. All
leases to which the Company or any of the Subsidiaries is a party are
valid and binding and no default has occurred or is continuing
thereunder, which could reasonably be expected to result in any
material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole, and the Company
and the Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the
Company or such Subsidiary.
(ee) The Company and the Subsidiaries maintain insurance with
insurers of recognized financial responsibility of the types and in
the amounts generally deemed adequate for their respective businesses
and consistent with insurance coverage maintained by similar companies
in similar businesses, including, but not limited to, insurance
covering real and personal property owned or leased by the Company or
its subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which
insurance is in full force and effect.
(ff) Except as disclosed in the Final Offering Memorandum,
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other ownership interest in, the Company
or any Subsidiary.
(gg) There is (i) no material unfair labor practice
complaint pending against the Company or any of the Subsidiaries or,
to the knowledge of the Company, threatened against any
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of them, before the National Labor Relations Board or any state or
local labor relations board, and no material grievance or arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or any of the Subsidiaries or, to
the knowledge of the Company, threatened against any of them, and (ii)
no material strike, labor dispute, slowdown or stoppage pending
against the Company or any of the Subsidiaries or, to the knowledge of
the Company, threatened against it or any of the Subsidiaries. No
collective bargaining agreement exists with any of the Company's
employees and, to the Company's knowledge, no such agreement is
imminent.
(hh) All material tax returns required to be filed by the
Company and each of the Subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of the
Subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(ii) Except as described in the Final Offering Memorandum,
the Company owns or possesses adequate rights to use all material
trademarks, service marks, trade names, trademark registrations,
service ▇▇▇▇ registrations, copyrights and licenses necessary for the
conduct of its business and has no reason to believe that the conduct
of its business as described in the Final Offering Memorandum will
conflict with any such rights of others.
(jj) Neither the Company nor any of the Subsidiaries, nor
to the knowledge of the Company, any agent or other person acting on
behalf of the Company or any Subsidiary has, directly or indirectly,
used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or
domestic political activity; made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; failed to
disclose fully any contribution in violation of law; violated in any
material respect any provision of the Foreign Corrupt Practices Act of
1977, as amended; or made any unlawful bribe, rebate, payoff,
influence, kick-back or other unlawful payment.
(kk) Ernst & Young LLP are independent public accountants
with respect to the Company as required by the Act.
(ll) The financial statements, together with related
schedules and notes forming part of the Final Offering Memorandum (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and the Subsidiaries, on the basis stated in
the Final Offering 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 set forth in the Final Offering
Memorandum (and any amendment or supplement thereto) is, in all
material respects, accurately
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presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(mm) Neither the Company nor any of the Subsidiaries is, nor
will the Company or any of the Subsidiaries become upon the sale of
the Securities and the application of the proceeds therefrom as
described in the Final Offering Memorandum under the caption "Use of
Proceeds," an "investment company" or a person "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(nn) Except as described in the Final Offering Memorandum, no
holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the
Company.
(oo) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(pp) Subsequent to the respective dates as of which
information is given in the Final Offering Memorandum, there has not
been (i) any material adverse change in the condition (financial or
otherwise), earnings, operations, business or business prospects of
the Company and the Subsidiaries, taken as a whole, (ii) any
transaction that is material to the Company and the Subsidiaries,
taken as a whole, except transactions entered into in the ordinary
course of business, (iii) any obligation, direct or contingent, that
is material to the Company and the Subsidiaries, taken as a whole,
incurred by the Company or the Subsidiaries, except obligations
incurred in the ordinary course of business, (iv) any change in the
capital stock or outstanding indebtedness of the Company or any of the
Subsidiaries (other than as expressly contemplated therein) that is
material to the Company and the Subsidiaries, taken as a whole, (v)
any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company, or (vi) any loss or damage (whether or
not insured) to the property of the Company or any of the Subsidiaries
which has been sustained or will have been sustained which has a
material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole.
(qq) Neither the Company nor any agent thereof acting on its
behalf has taken, and none of them will take, any action that might
cause this Agreement or the issuance or sale of the Securities to
violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R.
Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve
System or analogous foreign laws and regulations.
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(rr) No bid or purchase by the Company, and no bid or
purchase that could be attributed to the Company (as a result of bids
or purchases by an "affiliated purchaser" within the meaning of Rule
100 of Regulation M under the ▇▇▇▇ ▇▇▇) for or of the Common Stock,
any securities of the same class or series as the Common Stock or any
securities immediately convertible into or exchangeable for or that
represent any right to acquire Common Stock, is now pending or in
progress or will have commenced at any time prior to the completion of
the resale of the Securities by the Initial Purchasers.
5. Offering of Securities. Each Initial Purchaser (i)
acknowledges that the Securities have not been registered under the Securities
Act and may not be offered or sold except pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the Securities
Act or pursuant to an effective registration statement under the Securities Act
and (ii) severally and not jointly, represents and warrants to and agrees with
the Company that:
(a) It has not offered or sold, and will not offer or
sell, any Securities except (i) to those it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the
Securities Act) and that, in connection with each such sale, it has
taken or will take reasonable steps to ensure that the purchaser of
such Securities is aware that such sale is being made in reliance on
Rule 144A, (ii) to other institutional "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D) who
provide to it and to the Company a letter in the form of Annex A to
the Final Offering Memorandum or (iii) to Non-U.S. Persons in
accordance with Regulation S of the Securities Act.
(b) Neither it nor any person acting on its behalf has
made or will make offers or sales of the Securities in the United
States by means of any form of general solicitation or general
advertising (within the meaning of Regulation D) in the United States,
except pursuant to a registered public offering as provided in the
Registration Rights Agreement.
(c) Neither it nor any of its affiliates, nor any person
acting on its or their behalf will, directly or indirectly, make
offers or sales of any Security, or solicit offers to buy any
Security, under circumstances that would require the registration of
the Securities under the Securities Act.
(d) Neither it 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 Securities, except pursuant to a
registered public offering as provided in the Registration Rights
Agreement.
(e) No action has been or will be taken by the Company or
any other person that would permit the offer or sale of the Securities
or the distribution of the Preliminary Offering Memorandum or the
Final Offering Memorandum or any other offering material relating to
the Securities in any jurisdiction where action for that purpose is
required. The Company shall have no responsibility with respect to
the rights of any person to offer or sell Securities or to distribute
the Preliminary Offering Memorandum or the Final Offering Memorandum
or any other offering material relating to the Securities in any
jurisdiction. Accordingly, the Initial Purchaser shall not
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offer or sell any Securities, or distribute the Preliminary Offering
Memorandum or the Final Offering Memorandum or any other offering
material relating to the Securities, in any jurisdiction except in
compliance with applicable law. The Initial Purchasers shall obtain
any consent, approval or authorization required for it to offer or
sell Securities, or to distribute the Preliminary Offering Memorandum
or the Final Offering Memorandum or any other offering material
relating to the Securities under the laws or regulations of any
jurisdiction where it proposes to make offers or sales of Securities,
or to distribute the Preliminary Offering Memorandum or the Final
Offering Memorandum or any other offering material relating to the
Securities.
(f) It is a participating organization in the Depository
Trust Company ("DTC").
(g) The Securities have not been and will not be
registered under the Securities Act, are "restricted securities"
within the meaning of Rule 144 under the Securities Act and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S under
the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Each of the Initial Purchasers
represents that it has not offered, sold or delivered the Securities,
and will not offer, sell or deliver the Securities (i) (A) as part of
its distribution at any time or (B) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, within
the United States or to, or for the account or benefit of, U.S.
persons, except in accordance with Rule 903 of Regulation S or Rule
144A under the Securities Act, or to institutional "accredited
investors" in accordance with Section 5(a) or pursuant to Section 5(k)
below or (ii) in violation of Rule 144 under the Securities Act.
Accordingly, each Initial Purchaser agrees that neither it, its
affiliates nor any persons acting on its or their behalf has engaged
or will engage in any directed selling efforts as defined in Rule
901(b) of Regulation S with respect to the Securities, and it, its
affiliates and all persons acting on its or their behalf have complied
and will comply with the offering restriction requirements of
Regulation S.
(h) Each Initial Purchaser represents and agrees that the
Securities offered and sold in reliance on Regulation S have been and
will be offered and sold only in "offshore transactions" within the
meaning of Regulation S and that such Securities have been and will be
represented upon issuance by a global security that may not be
exchanged for definitive securities until the expiration of the
Restricted Period (as defined in Regulation S) and only upon
certification of beneficial ownership of the Securities by a non-U.S.
Person or a U.S. person who purchased such securities in a transaction
that was exempt from the registration requirements of the Act.
(i) Each Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities (other than a sale pursuant to
Rule 144A or to institutional "accredited investors" in accordance
with Section 5(a), it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the Restricted Period a
confirmation or notice to substantially the following effect:
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"The Securities covered hereby have not been registered under
the United States Securities Act of 1933 (the "Securities
Act") and may not be offered and sold within the United States
or to, or for the account or benefit of, U.S. persons (i) (A)
as part of their distribution at any time or (B) 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 if available) under
the Securities Act or (ii) in violation of Rule 144 under the
Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in this Section 5 that have meanings assigned to them in Regulation
S are used herein as so defined.
6. Indemnification. (a) The Company agrees to indemnify
and hold harmless (i) each Initial Purchaser, (ii) each person, if
any, who controls any Initial Purchaser within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and (iii) the
respective officers, directors, partners, employees, representatives
and agents of the Initial Purchasers or any controlling person
(collectively, the "Indemnified Parties") from and against any and all
losses, claims, damages, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Final Offering Memorandum (as amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto) or the Preliminary Offering Memorandum, or caused by any
omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the
circumstances under which made, not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any
such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Initial Purchaser
furnished in writing to the Company by or on behalf of any Initial
Purchaser through you expressly for use therein. The foregoing
indemnity, however, insofar as it relates to any untrue statement or
omission or alleged untrue statement or omission made in the
Preliminary Offering Memorandum but eliminated or remedied in the
Final Offering Memorandum shall not inure to the benefit of any
Indemnified Party with respect to any action or claim asserted by a
person who purchased any Notes from such Initial Purchaser unless such
person was sent or given a copy of the Final Offering Memorandum with
or prior to the written confirmation of the sale involved.
(b) In case any action shall be brought against any
Indemnified Party, based upon the Preliminary Offering Memorandum or
the Final Offering Memorandum or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company,
such Indemnified Party shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified
Party and payment of all reasonable fees and expenses. Any
Indemnified Party shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the
reasonable fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the employment of such counsel
has been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such action (including any impleaded
parties) include
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both such Indemnified Party and the Company, and such Indemnified
Party shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or
additional to those available to the Company (in which case the
Company shall not have the right to assume the defense of such action
on behalf of such Indemnified Party, it being understood, however,
that the Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel)
for all such Indemnified Parties, which firm shall be designated in
writing by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and
that all such fees and expenses shall be reimbursed as they are
incurred). The Company shall not be liable for any settlement of any
such action effected without its written consent, but if settled with
its written consent, it agrees to indemnify and hold harmless any
Indemnified Party from and against any loss or liability by reason of
such settlement. 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.
(c) Each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless (i) the Company (ii) each
person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act and (iii) the
officers, directors, partners, employees, representatives and agents
of the Company or any such controlling person (collectively, the
"Indemnified Company Parties") to the same extent as the foregoing
indemnity from the Company to each Initial Purchaser but only with
reference to information relating to such Initial Purchaser furnished
in writing by or on behalf of such Initial Purchaser expressly for use
in the Preliminary Offering Memorandum or the Final Offering
Memorandum (or any amendment or supplement thereto). In case any
action shall be brought against and Indemnified Company Party based on
the Preliminary Offering Memorandum or Final Offering Memorandum and
in respect of which indemnity may be sought against any Initial
Purchaser, each Initial Purchaser shall have the rights and duties
given to the Company (except that if the Company shall have assumed
the defense thereof such Initial Purchaser shall not be required to do
so, but may employ separate counsel therein and participate in the
defense thereof but the reasonable fees and expenses of such counsel
shall be at the expense of such Initial Purchaser), and the
Indemnified Company Party shall have the rights and duties given to
the Initial Purchasers, by paragraph 6(b) hereof.
(d) If the indemnification provided for in this Section 6
is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments 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
Securities. If the allocation provided by the immediately preceding
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sentence is not permitted by applicable law for any reason, the
Company and the Initial Purchasers shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Initial Purchasers in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Initial Purchasers on
the other hand shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company, and the total discounts and commissions
received by the Initial Purchasers in connection with the purchase of
the Securities hereunder, bear to the total price to investors, in
each case as set forth on the cover page of the Final Offering
Memorandum. The relative fault of the Company and the Initial
Purchasers 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 such Initial Purchaser and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this paragraph 6(d)
were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 6, such Initial Purchaser (or any related Indemnified
Party) shall not be required to contribute, in the aggregate, any
amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchaser with respect to the
Securities exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Initial Purchasers' obligations to contribute pursuant to this
paragraph 6(d) are several in proportion to the respective principal
amount of Notes purchased by each of the Initial Purchasers and not
joint.
(e) Each Initial Purchaser represents and warrants that
the information set forth (i) in the last paragraph on the front cover
page, (ii) on page 3 regarding stabilization and over-allotment, and
passive market making, and (iii) under the caption "Plan of
Distribution" in the Preliminary Offering Memorandum and the Final
Offering Memorandum relating to the Securities (insofar as such
information relates to such Initial Purchaser) constitutes the only
information furnished by the Initial Purchasers for inclusion in the
Preliminary Offering Memorandum and the Final Offering Memorandum.
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7. Conditions of Initial Purchasers' Obligations. The
several obligations of the Initial Purchasers to purchase the Firm Notes under
this Agreement on the Closing Date and the Additional Notes, if any, on an
Option Closing Date are subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date or an Option Closing Date, as the case may be, with the same
force and effect as if made on and as of the Closing Date or an Option
Closing Date.
(b) The Final Offering Memorandum shall have been printed
and copies distributed to the Initial Purchasers as promptly as
practicable following the date of this Agreement or at such other date
and time as to which you may agree; and no stop order suspending the
sale of the Securities 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 which would, as of the Closing Date or any Option
Closing Date, prevent the issuance of the Securities; and no
injunction, restraining order or order of any nature by a Federal or
state court of competent jurisdiction shall have been issued as of the
Closing Date or any Option Closing Date which would prevent the
issuance of the Securities on the Closing Date or any Option Closing
Date.
(d) (i) Since the date of the latest balance sheet
included in the Final Offering Memorandum, there shall not have been
any material adverse change, or any development that could reasonably
be expected to result in a material adverse change, in the condition,
financial or otherwise, or in the earnings, affairs or business
prospects, whether or not arising in the ordinary course of business,
of the Company, (ii) since the date of the latest balance sheet
included in the Final Offering Memorandum there shall not have been
any material change, or any development that could reasonably be
expected to result in a material adverse change, in the capital stock
or in the long-term debt of the Company from that set forth in the
Final Offering Memorandum, other than changes resulting from (y) the
exercise of stock options which were granted under the Company's
currently existing stock option plans or agreements or (z) the
exercise of warrants granted to Creditanstalt-Benkverein dated as of
▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to
the Company and its subsidiaries, taken as a whole, other than those
reflected in the Final Offering Memorandum and (iv) on the Closing
Date or an Option Closing Date, as the case may be, you shall have
received a certificate dated the Closing Date (or an Option Closing
Date, as appropriate), signed by ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in
their capacities as the Chief Executive Officer and Chief Financial
Officer of the Company, respectively, confirming the matters set forth
in paragraphs (a), (b) and (d) of this Section 7.
(e) The Company and the Trustee shall have entered into
the Indenture and you shall have received counterparts, conformed as
executed, thereof.
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(f) The Company shall have entered into the Registration
Rights Agreement and you shall have received counterparts, conformed
as executed, thereof.
(g) You shall have received on the Closing Date or an
Option Closing Date, as the case may be, an opinion (reasonably
satisfactory to you and counsel for the Initial Purchaser), dated the
Closing Date (or an Option Closing Date, as appropriate) of ▇▇▇▇▇ &
▇▇▇▇▇▇▇, L.L.P., counsel for the Company, to the effect that:
(i) The Company was duly incorporated, and is
validly existing and in good standing under the laws of the
State of Delaware as of the date specified in such opinion
letter, and has the corporate power and corporate authority to
own, lease and operate its properties and to conduct its
business as described in the Final Offering Memorandum. The
Company is authorized to transact business as a foreign
corporation in each jurisdiction identified on a Schedule to
such opinion letter, as of the respective dates of the
certificates specified therein.
(ii) Each of the Corporate Subsidiaries
incorporated in Virginia was incorporated, and is validly
existing and in good standing under the laws of its
jurisdiction of incorporation as of the respective dates
specified in such opinion letter and has the corporate power
and corporate authority to own, lease and operate its
properties and to conduct its business as described in the
Final Offering Memorandum. Each such Corporate Subsidiary is
authorized to transact business as a foreign corporation in
each jurisdiction identified on a Schedule to such opinion
letter, as of the respective dates of the certificates
specified therein.
(iii) All of the outstanding shares of capital
stock of each such Corporate Subsidiary (a) have been duly
authorized and are validly issued, fully paid and
nonassessable, and (b) to such counsel's knowledge, were not
issued in violation of any preemptive rights under such
Corporate Subsidiary's charter or under the laws of the
jurisdiction of its incorporation or in violation of any
similar contractual rights.
(iv) Each Limited Partnership Subsidiary formed in
Virginia or Maryland was formed, and is validly existing and
in good standing under the laws of its jurisdiction of
organization as of the respective dates specified in such
opinion letter, and has the limited partnership power and
limited partnership authority to own, lease and operate its
properties and to conduct its business as described in the
Final Offering Memorandum. Each Limited Partnership
Subsidiary is authorized to transact business as a foreign
limited partnership in each jurisdiction identified on a
Schedule to such opinion letter, as of the respective dates of
the certificates specified therein.
(v) Each LLC Subsidiary formed in Maryland was
formed, and is validly existing and in good standing under the
laws of its jurisdiction of organization as of the respective
dates specified in such opinion letter, and has the limited
liability company
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power and limited liability company authority to own, lease
and operate its properties and to conduct its business as
described in the Final Offering Memorandum.
(vi) Assuming the accuracy of the representations
and warranties of the Company and the Initial Purchasers
contained in this Agreement, the issuance and sale of the
Securities to the Initial Purchasers and the offering, resale
and delivery of the Securities by the Initial Purchasers, in
each case in the manner contemplated by the Offering
Memorandum, are exempt from the registration requirements of
the Securities Act and it is not necessary to qualify the
Indenture under the Trust Indenture Act;
(vii) The Company has the corporate power and
authority to enter into this Agreement, the Indenture and the
Registration Rights Agreement and to consummate the
transactions contemplated hereby and thereby and this
Agreement, the Indenture and the Registration Rights Agreement
have been duly authorized, executed and delivered by the
Company.
(viii) The Indenture constitutes a valid and
binding obligation of the Company, enforceable in accordance
with its terms, except as may be limited by bankruptcy,
rehabilitation, insolvency, reorganization, moratorium or
other laws affecting creditors' rights (including, without
limitation, the effect of statutory and other law regarding
fraudulent transfers, fraudulent, conveyances and preferential
transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity,
including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of
whether the Indenture is considered in a proceeding in equity
or at law);
(ix) The Registration Rights Agreement constitutes
a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as may be limited by
bankruptcy, rehabilitation, insolvency, reorganization,
moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and
other law regarding fraudulent transfers, fraudulent,
conveyances and preferential transfers) and as may be limited
by the exercise of judicial discretion and the application of
principles of equity, including, without limitation,
requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether the Registration Rights
Agreement is considered in a proceeding in equity or at law);
(x) The Notes have been duly authorized on behalf
of the Company, and (assuming due execution, authentication,
issuance and delivery as provided in the Indenture) 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 may be limited by
bankruptcy, rehabilitation, insolvency, reorganization,
moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and
other law regarding fraudulent transfers, fraudulent,
conveyances and preferential transfers) and as may be limited
by the exercise of judicial discretion and the application
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of principles of equity, including, without limitation,
requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether the Notes are considered in
a proceeding in equity or at law); the issuance of the Notes
is not subject to (a) any preemptive rights under the
Company's Restated Certificate or (b) to such counsel's
knowledge, similar contractual rights;
(xi) The authorized capital stock of the Company
conforms in all material respects to the description thereof
contained in the Final Offering Memorandum under the caption
"Description of Capital Stock"; and the shares of Common Stock
initially issuable upon conversion of the Notes have been duly
authorized and reserved for issuance upon conversion of the
Notes, and such shares of Common Stock, when issued and
delivered by the Company upon such conversion, will be validly
issued, fully paid and nonassessable and the issuance of such
shares of Common Stock will not be subject to (A) any
preemptive rights under the Company's Restated Certificate of
Incorporation or (B) to such counsel's knowledge, similar
contractual rights;
(xii) The statements in the Offering Memorandum
under the caption "Description of the Notes," insofar as such
statements purport to summarize provisions of the Notes, the
Indenture and the Registration Rights Agreement, are accurate
summaries in all material respects of the provisions purported
to be summarized therein.
(xiii) The execution, delivery and performance as of
the Closing Date by the Company of this Agreement, the
Indenture and the Registration Rights Agreement do not (i)
violate the Restated Certificate of Incorporation or Amended
and Restated Bylaws of the Company, the charter, bylaws,
partnership agreements or operating agreements of any of the
Subsidiaries or the General Corporation Law of the State of
Delaware or (ii) breach or constitute a default under any
contract or agreement listed on a Schedule to such opinion
letter. No approval or consent of any Delaware, Virginia or
Maryland governmental agency is required to be obtained by the
Company in connection with the execution, delivery and
performance as of the Closing Date by the Company of this
Agreement.
(xiv) Each of the Company's owned assisted living
facilities in Maryland and Virginia currently holds (or has
pending a renewal application for) a license authorizing such
facility to furnish assisted living services as described
under the heading "Services" on pages 34 to 35 of the Final
Offering Memorandum.
(xv) Neither the Company nor any of the
Subsidiaries is required to be registered as an "investment
company" under the 1940 Act; and
(xvi) To such counsel's knowledge, the Company
owns directly or indirectly the ownership interests in the
Subsidiaries set forth on Annex II to the Purchase Agreement.
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In addition to the matters set forth above, such opinion shall
include a statement that no facts have come to the attention of such
counsel which cause them to believe that (i) the Final Offering
Memorandum, as of its date and as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading, (ii) there are any legal or governmental
proceedings pending or threatened against the Company that would be
required to be disclosed in a Registration Statement on Form S-3 that
are not disclosed in the Final Offering Memorandum, or (iii) there are
any contracts or documents of a character that would be required to be
described in a Registration Statement on Form S-3 that are not
described or referred to in the Final Offering Memorandum; provided
that in making the foregoing statements (which shall not constitute an
opinion), such counsel need not express any views as to the financial
statements and supporting schedules and other financial and
statistical information and data included in or omitted from the Final
Offering Memorandum.
In giving its opinion required by this paragraph (g) above,
such counsel may rely, (A) as to all matters of fact, upon
certificates and written statements of officers and employees of the
Company and its Subsidiaries, and (B) as to the qualification and good
standing of the Company and its Subsidiaries to do business in any
jurisdiction, upon certificates of appropriate government officials in
such jurisdictions. Further, such counsel may state that their
opinion is based as to matters of law solely upon (i) the federal
securities laws, (ii) the General Corporation Law, as amended, of each
of the States of Delaware and Virginia, (iii) the limited partnership
acts of Virginia and Maryland, (iv) the limited liability company act
of Maryland, (v) New York contract law (but not including any
statutes, ordinances, administrative decisions, rules or regulations
of any political subdivision of the State of New York), (vi) Hospitals
and Related Institutions, Md. Health-Gen. Code ▇▇▇. Sections 19-301
to 19-374, (vii) Domiciliary Care Homes, Md. Regs. Code Sections
10.07.03.01 to 10.07.03.27, (viii) Licensing of Homes for Aged, Infirm
or Disabled Adults, Va. Code ▇▇▇. Sections 63.1-172 to 182.1, and (ix)
Standards and Regulations for Licensed Adult Care Residences, 22 Va.
Admin. Code Sections 40-70-10 to ▇▇-▇▇▇-▇▇▇; and that such counsel
expresses no opinion as to any other laws, statutes, ordinances, rules
or regulations; provided that, no opinion need be expressed in
paragraph (viii) above with respect to the waiver contained in Section
4.9 of the Indenture and no opinion need be expressed in paragraph
(ix) above with respect to the indemnity or contribution provisions of
the Registration Rights Agreement. The opinions expressed in
paragraphs (viii), (ix) and (x) above shall be understood to mean only
that if there is a default in performance of any obligation, (i) if a
failure to pay or other damage can be shown and (ii) if the defaulting
party can be brought into a court which will hear the case and apply
the governing law, then, subject to the availability of defenses, and
to the exceptions set forth in paragraphs (viii), (ix) and (x) above,
the court will provide a money damage (or perhaps injunctive or
specific performance) remedy.
The opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ described in this paragraph
7(g) shall be rendered to you at the request of the Company and shall
so state therein.
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(h) You shall have received on the Closing Date or an
Option Closing Date, as the case may be, an opinion, dated the Closing
Date (or an Option Closing Date, as appropriate), of ▇▇▇▇▇▇ & Bird
LLP, counsel for the Initial Purchaser, in form and substance
reasonably satisfactory to you, with respect to the sufficiency of all
such corporate proceedings and other legal matters relating to this
Agreement and the transactions contemplated hereby as you may
reasonably require, and the Company shall have furnished to such
counsel such documents as they may have requested for the purpose of
enabling them to pass upon such matters.
(i) You shall have received a letter on and as of the
Closing Date or an Option Closing Date, as the case may be, in form
and substance satisfactory to you, from Ernst & Young LLP, independent
public accountants, with respect to the financial statements and
certain financial information contained or incorporated by reference
in the Final Offering Memorandum and substantially in the form and
substance of the letter delivered to you by Ernst & Young LLP on the
date of this Agreement.
(j) The Company shall not have failed at or prior to the
Closing Date or an Option Closing Date, as the case may be, to perform
or comply in any material respect with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
(k) The Company shall have furnished to you such further
certificates and documents as you or your counsel shall reasonably
request, including, without limitation, certificates of officers of
the Company as to the accuracy of the representations and warranties
of the Company herein, as to the performance by the Company of their
respective obligations hereunder and as to other conditions concurrent
and precedent to the obligations of the Initial Purchasers hereunder.
All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory to counsel to the Underwriters. The Company will furnish
with such number of conformed copies of such opinions, certificates,
letters and documents as you shall reasonably request.
The several obligations of the Initial Purchasers to purchase
any Additional Notes hereunder are subject to satisfaction on and as
of each Option Closing Date of the conditions set forth in paragraphs
(a) through (k) except that the opinions called for in paragraphs (g)
and (h) and the letters referred to in paragraph (i) shall be revised
to reflect the sale of the Additional Notes.
8. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Final Offering Memorandum, any material adverse change, or
26
27
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, of the Company and its
subsidiaries, taken as a whole, or the earnings, affairs, or business prospects
of the Company and its subsidiaries, taken as a whole, whether or not arising
in the ordinary course of business, which would, in your judgment, make it
impracticable to market the Securities on the terms and in the manner
contemplated in the Final Offering Memorandum, (ii) any outbreak or escalation
of hostilities or other national or international calamity or crisis or change
in economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Securities on the terms and in
the manner contemplated in the Final Offering Memorandum, (iii) the suspension
or material limitation of trading in securities on the New York Stock Exchange,
the American Stock Exchange or The Nasdaq Stock Market or limitation on prices
for securities on any such exchange or The Nasdaq Stock Market, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
9. Default by an Initial Purchaser. If one of the
Initial Purchasers shall fail to purchase and pay for any of the 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 Purchaser shall be
obligated to take up and pay for the Notes which the defaulting Initial
Purchaser agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Notes which the defaulting Initial
Purchaser agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Notes set forth in Schedule I hereto, the remaining Initial
Purchaser shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Notes, and if such non-defaulting Initial
Purchaser does not purchase all the Notes, this Agreement will terminate
without liability to the non-defaulting Initial Purchaser or the Company. In
the event of a default by any Initial Purchaser as set forth in this Section 9,
the Closing Date or the Option Closing Date, as the case may be, shall be
postponed for such period, not exceeding seven days, as the remaining Initial
Purchaser shall determined in order that the required changes in the Final
Offering 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 or any non-defaulting
Initial Purchaser for damages occasioned by its default hereunder.
10. Miscellaneous. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (a) if to the
Company, to Sunrise Assisted Living, Inc., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (b) if to any Initial
Purchaser, c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, or in any case to
such other address as the person to be notified may have requested in writing.
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The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors and of the several Initial Purchasers set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Notes, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Initial Purchaser or by or on behalf of the Company, the officers or
directors of the Company or any controlling person of the Company, (ii)
acceptance of the Notes and payment for them hereunder and (iii) termination of
this Agreement.
If this Agreement shall be terminated by the Initial
Purchasers because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
the Company shall reimburse the Initial Purchasers for all out-of-pocket
expenses (including the fees and disbursements of counsel) reasonably incurred
by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Initial Purchasers, any controlling persons referred to herein and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
a purchaser of any of the Notes from either of the Initial Purchasers merely
because of such purchase.
This Agreement shall be governed and construed in accordance
with the internal laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
[Signatures on Next Page]
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Initial Purchasers.
Very truly yours,
SUNRISE ASSISTED LIVING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President
----------------------------
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
By: /s/ ▇.▇. ▇▇▇▇▇▇
----------------------------------------
Name:
-----------------------------
Title: Principal
----------------------------
30
SCHEDULE I
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation . . . . . . . . . . . . . . . . $ 97,500,000
Alex. ▇▇▇▇▇ & Sons Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . 32,500,000
------------
Total $130,000,000
============
31
ANNEX II
Sunrise Assisted Living, Inc.
List of Consolidated Subsidiaries
Direct or Indirect Jurisdiction
Subsidiaries Ownership of Incorporation
------------- ------------------- ----------------
Sunrise Terrace, Inc. 100% Virginia
Sunrise Development, Inc. 100% Virginia
Sunrise Assisted Living
Investments, Inc. 100% Virginia
Sunrise Assisted Living
Limited Partnership 100% Virginia
Sunrise Partners Limited Partnership 100% Virginia
Sunrise at ▇▇▇▇▇▇▇ Park
Limited Partnership 50% Massachusetts
Sunrise of Raleigh, LLC 100% North Carolina
Sunrise Village House, LLC 80% Maryland
Sunrise Assisted Living
Limited Partnership II 100% Virginia
Sunrise Assisted Living
Limited Partnership III 100% Pennsylvania
Sunrise Assisted Living
Limited Partnership IV 100% New Jersey
Sunrise Assisted Living
Limited Partnership V 100% New Jersey
Sunrise Assisted Living
Limited Partnership VI 100% New Jersey
Sunrise Assisted Living
Limited Partnership VII 100% Maryland
Sunrise Assisted Living
Limited Partnership VIII 100% California
Sunrise Assisted Living of
Abington, L.P. 100% Pennsylvania
Sunrise Assisted Living of
Granite Run, L.P. 100% Pennsylvania
Sunrise Assisted Living of
Franconia, L.P. 100% Virginia
Independence Home Care
Agency, Inc. 100% Washington
Sunrise Homes of Towson LLC 100% Maryland
Sunrise East Assisted Living
Limited Partnership 100% Virginia
32
Sunrise of Alexandria 100% Virginia
Assisted Living, L.P.
Sunrise of Rockville Assisted 100% Maryland
Living Limited Partnership
Sunrise Huntcliff Assisted 100% Georgia
Living Limited Partnership
Sunrise Augusta Assisted 100% Georgia
Living Limited Partnership
Sunrise Columbus Assisted 100% Georgia
Living Limited Partnership
Sunrise Greenville Assisted 100% South Carolina
Living Limited Partnership
Sunrise Northshore Assisted 100% Florida
Living Limited Partnership
Sunrise of Westfield Assisted
Living, LP 100% Maryland
NAH/Sunrise Severna Park, LLC 50% Maryland
Sunrise Wayland Assisted
Living Limited Partnership 100% Massachusetts
Sunrise ▇▇▇▇▇▇▇ Assisted
Living Limited Partnership 100% Massachusetts
Sunrise Napa Assisted Living 100% California
Limited Partnership
Sunrise Walnut Creek Assisted 100% California
Living Limited Partnership
Sunrise West Assisted Living 100% California
Limited Partnership
Sunrise Sterling Canyon Assisted 100% California
Living Limited Partnership
Sunrise Decatur Assisted Living 100% Georgia
Limited Partnership
Sunrise ▇▇▇▇ ▇▇▇▇▇ Assisted Living 100% Georgia
Limited Partnership
Sunrise East ▇▇▇▇ Assisted Living 100% Georgia
Limited Patnership
Sunrise ▇▇▇▇ Cove Assisted Living 100% New York
Limited Partnership
Sunrise Walnut Creek Assisted Living 100% California
Limited Partnership
Sunrise Napa Assisted Living Limited 100% California
Partnership
Sunrise Pinehurst Assisted Living 100% Colorado
Limited Partnership
Sunrise ▇▇▇▇▇ Assisted Living Limited 100% Colorado
Partnership
33
Sunrise Cohasset Assisted Living Limited 100% Massachusetts
Partnership
Sunrise Oakland Assisted Living Limited 100% California
Partnership
