EXHIBIT 1.1
4,600,000 SHARES
HEALTHCARE REALTY TRUST INCORPORATED
COMMON STOCK
UNDERWRITING AGREEMENT
July 22, 2004
XXXX XXXXX XXXX XXXXXX, INCORPORATED
As representatives of the several Underwriters
named in Schedule I hereto
c/x Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation that has
elected to be taxed as a real estate investment trust (the "Company"), proposes
to issue and sell to the several underwriters named in Schedule I hereto (the
"Underwriters") for whom you are acting as representatives (the
"Representatives") an aggregate of 4,000,000 shares (the "Firm Shares") of the
common stock, par value $0.01 per share, of the Company ("Common Stock"). The
Company also proposes to sell to the several Underwriters, for the sole purpose
of covering over-allotments in connection with the sale of the Firm Shares, at
the option of the Underwriters, up to an additional 600,000 shares of Common
Stock (the "Option Shares"). The Firm Shares and the Option Shares are
hereinafter referred to collectively as the "Shares".
The Company confirms as follows its agreement with the Representatives
and the several other Underwriters.
1. PURCHASE AND SALE. Subject to the terms and conditions herein set
forth and on the basis of the representations, warranties and agreements herein
contained, (a) the Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per share of $34.57 (the "Purchase Price"), the
number of Firm Shares as set forth opposite the name of such Underwriter in
Schedule I hereto and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Option Shares as provided below, the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the Purchase
Price, the number of Option Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the number of Option Shares as to
which such election shall have been exercised by a fraction the numerator of
which is the aggregate number of Firm Shares to be purchased by such Underwriter
and the denominator of which is the aggregate number of Firm Shares to be
purchased by all of the Underwriters from the Company hereunder set forth in
clause (a) above.
The Company hereby grants to the Underwriters the right to
purchase at their election up to 600,000 Option Shares, at the Purchase Price,
for the sole purpose of covering over-allotments in connection with the sale of
the Firm Shares. The Underwriters may exercise their option to acquire Option
Shares in whole or in part from time to time only by written notice from the
Representatives to the Company, given within a period of 30 calendar days after
the date of this Agreement (or, if such 30th day shall be a Saturday or Sunday
or a holiday, on the next day thereafter when the New York Stock Exchange is
open for trading) and setting forth the aggregate number of Option Shares to be
purchased and the date on which such Option Shares are to be delivered, as
determined by the Representatives but in no event earlier than the Closing Date
(as defined herein) or, unless the Representatives and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
2. TERMS OF OFFERING. It is understood that the several Underwriters
propose to offer the Firm Shares for sale to the public upon the terms and
conditions set forth in the Prospectus (as defined herein).
3. PAYMENT AND DELIVERY. The Company will deliver the Firm Shares to
the Representatives for the accounts of the Underwriters, against payment of the
aggregate purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer drawn to the order of the Company at the office
of the Representatives (or such other place as you may specify), at 10:00 A.M.,
Baltimore time, on July 28, 2004, or at such other time not later than seven
full business days thereafter as Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ("Xxxx
Xxxxx") and the Company determine, such time being herein referred to as the
"Closing Date". For purposes of Rule 15c6-1 under the Exchange Act, the Closing
Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the Firm
Shares. The certificates for the Firm Shares so to be delivered will be in
definitive form, in such denominations and registered in such names as the
Representatives request and will be made available for checking and packaging at
the above office of the Representatives (or such other place as you may specify)
at least 24 hours prior to the Closing Date.
Each time for the delivery of and payment for the Option
Shares, being herein referred to as an "Option Closing Date", which may be the
Closing Date, shall be determined by the Representatives as provided above. The
Company will deliver the Option Shares with respect to which the options shall
have been exercised and are being purchased on each Option Closing Date to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price therefor in Federal (same day) funds by official bank check or
checks or wire transfer drawn to the order of the Company at the above office of
the Representatives (or such other place as you may specify), at 10:00 A.M.,
Baltimore time on the applicable Option Closing Date. The certificates for the
Option Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as the Representatives request and
will be made available for checking and packaging at the above office of the
Representatives (or such other place as you may specify) at least 24 hours prior
to such Option Closing Date.
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4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. (a) The
Company represents and warrants to, and agrees with, each of the Underwriters
that, as of the date hereof and as of the Closing Date and each Option Closing
Date, if any:
(i) The Company has carefully prepared, pursuant to and in
conformity with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations promulgated
thereunder (the "1933 Act Rules and Regulations") by the Securities and
Exchange Commission (the "SEC"), and has filed with the SEC a
registration statement on Form S-3 (File No. 333-109306) which has been
declared effective, including a prospectus relating to common stock,
common stock warrants, preferred stock and debt securities of the
Company, for registration of the Shares under the 1933 Act and the
offering thereof from time to time in accordance with Rule 415 of the
1933 Act Rules and Regulations. The Company and the offering of the
Shares in the registration statement meet the requirements for use of
Form S-3 under the 1933 Act. The documents incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time they were filed with the SEC, complied in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations promulgated
thereunder (the "1934 Act Rules and Regulations") and none of such
documents, when they were filed with the SEC, 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; and any further documents
so filed and incorporated by reference in the Prospectus, when such
documents are filed with SEC, will conform in all material respects to
the requirements of the 1934 Act and the 1934 Act Rules and Regulations
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Such registration statement (and any further registration statements
that may be filed by the Company for the purpose of registering
additional shares of Common Stock and in connection with which this
Agreement is included or incorporated therein by reference as an
exhibit) including all documents incorporated therein by reference, as
from time to time amended or supplemented by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, are referred to
herein as the "Registration Statement." The term "Registration
Statement" also means the registration statement as amended by a
post-effective amendment and includes any abbreviated registration
statement prepared and filed with the SEC in accordance with Rule
462(b) under the 1933 Act (an "Abbreviated Registration Statement").
The time at which the Registration Statement became effective is
referred to herein as the "Effective Date." The Company proposes to
prepare and file with the SEC, pursuant to Rule 424 under the 1933 Act,
a supplement to the prospectus (the "Prospectus Supplement") included
in the Registration Statement that will describe the issuances of the
Shares pursuant to this Agreement, the sale and plan of distribution of
the Shares and additional information concerning the Company and its
business. The Company may, from time to time, prepare and file with the
SEC, pursuant to Rule 430 or 430A under the 1933 Act Rules and
Regulations a preliminary Prospectus Supplement (each a "Preliminary
Prospectus") containing the prospectus included as part of the
Registration Statement, as supplemented by a preliminary Prospectus
Supplement, and including the documents
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incorporated in such prospectus by reference, relating to the Shares.
The prospectus, including all documents incorporated therein by
reference, included in the Registration Statement, as supplemented by
any Preliminary Prospectus or Prospectus Supplement, in the form filed
by the Company with the SEC is herein called the "Prospectus." For
purposes of this Agreement, the words "amend," "amendment," "amended,"
"supplement" or "supplemented" with respect to the Registration
Statement or the Prospectus shall mean amendments or supplements to the
Registration Statement or the Prospectus, as the case may be as well as
documents filed after the date of this Agreement and incorporated by
reference therein as described above.
(ii) Neither the SEC nor any state or other jurisdiction or
other regulatory body has issued, and neither is, to the knowledge of
the Company, threatening to issue, any stop order under the 1933 Act or
other order suspending the effectiveness of the Registration Statement
(as amended or supplemented) or preventing or suspending the use of any
Prospectus Supplement, Preliminary Prospectus or the Prospectus or
suspending the qualification or registration of the Shares for offering
or sale in any jurisdiction, nor instituted or, to the knowledge of the
Company, threatened to institute proceedings for any such purpose. The
Prospectus and each Prospectus Supplement or Preliminary Prospectus, as
of the applicable date of issue, and the Registration Statement and any
amendments thereto as of the applicable effective date, contain or will
contain, as the case may be, all statements which are required to be
stated therein by, and in all material respects conform or will
conform, as the case may be, to the requirements of, the 1933 Act and
the 1933 Act Rules and Regulations. Neither the Registration Statement
nor any amendment thereto, as of the applicable effective date,
contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact required
to be stated therein or necessary to make the statements therein, not
misleading, and neither the Prospectus, any Prospectus Supplement, nor
Preliminary Prospectus, at the applicable date of issue, contains or
will contain, as the case may be, any untrue statement of a material
fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
as to information contained in or omitted from the Registration
Statement, any Preliminary Prospectus or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company relating to the
Underwriters by or on behalf of the Underwriters expressly for use in
the preparation thereof (as provided in this Agreement). There is no
contract or document required to be described in the Registration
Statement or Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as required. Any
future documents incorporated by reference so filed, when they are
filed, will comply in all material respects with the requirements of
the 1934 Act and the 1934 Act Rules and Regulations; no such
incorporated document contained or will contain any untrue statement of
a material fact or omit or will omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and, when read together and with the other information in
the Prospectus, at the time the Registration Statement became effective
and at the Closing Date, each such incorporated document did not or
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will not, as the case may be, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company and this Agreement constitutes a valid and
legally binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of
equity (the "Exceptions").
(iv) The Company and its "subsidiaries" (as defined in Section
4(a)(vii) hereof) have been duly incorporated or organized and are
validly existing as corporations or organizations in good standing
under the laws of the states or other jurisdictions in which they are
incorporated or organized, with full power and authority (corporate and
other) to own, lease and operate their properties and conduct their
businesses as described in the Prospectus and, with respect to the
Company, to execute and deliver, and perform the Company's obligations
under, this Agreement; the Company and its subsidiaries are duly
qualified to do business as foreign corporations or organizations in
good standing in each state or other jurisdiction in which their
ownership or leasing of property or conduct of business legally
requires such qualification, except where the failure to be so
qualified, individually or in the aggregate, would not have a Material
Adverse Effect. The term "Material Adverse Effect" as used herein means
any material adverse effect on the condition (financial or other), net
worth, business, affairs, management, prospects, results of operations
or cash flow of the Company and its subsidiaries, taken as a whole.
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree otherwise than
as set forth in the Prospectus or as disclosed in writing to the
Underwriters prior to execution and delivery of this Agreement and,
since the respective dates as of which information is given in the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries which would
give rise to a Material Adverse Effect, or any development involving a
prospective Material Adverse Effect, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth in the Prospectus.
(vi) The issuance and sale of the Shares pursuant to this
Agreement and the execution, delivery and performance by the Company of
this Agreement, and the consummation of the transactions herein or
therein contemplated, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance
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upon any properties or assets of the Company or any of its subsidiaries
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party, or by which the Company or any of its subsidiaries is
bound, or to which any of the properties or assets of the Company or
any of its subsidiaries is subject, or violate any statute, rule,
regulation or other law, or any order or judgment, of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, except to such extent
as, individually or in the aggregate, does not have a Material Adverse
Effect, nor will such action result in any violation of the provisions
of the Company's articles of incorporation or bylaws; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the issuance and
sale of the Shares pursuant to this Agreement or the consummation of
the transactions contemplated hereby, except such as have been, or will
be prior to the Closing Date, obtained under the 1933 Act or as may be
required by the New York Stock Exchange ("NYSE") and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection with the
purchase and distribution of the Shares by the Underwriters.
(vii) The Company has duly and validly authorized capital
stock as set forth in the Prospectus; all outstanding shares of Common
Stock of the Company conform, or when issued the Shares will conform,
to the description thereof in the Prospectus and have been, or, when
issued and paid for in the manner described herein will be, duly
authorized, validly issued, fully paid and non-assessable; and the
issuance of the Shares to be purchased from the Company hereunder is
not subject to preemptive or other similar rights, or any restriction
upon the voting or transfer thereof (except for those rights and
restrictions relating primarily to the Company's status as a REIT as
described in Section 4(a)(xxiii) hereof) pursuant to applicable law or
the Company's articles of incorporation, by-laws or governing documents
or any agreement to which the Company or any of its subsidiaries is a
party or by which any of them may be bound. All corporate action
required to be taken by the Company for the authorization, issuance and
sale of the Shares has been duly and validly taken prior to the date of
this Agreement. Except as disclosed in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or rights related to or
entitling any person to purchase or otherwise to acquire any shares of,
or any security convertible into or exchangeable or exercisable for,
the capital stock of, or other ownership interest in, the Company. The
Company has no subsidiaries or affiliates (collectively,
"subsidiaries") other than those identified in Exhibit 21 to the
Company's last filed Annual Report on Form 10-K or as otherwise
disclosed in writing to the Underwriters ("Exhibit 21"). The Company
owns all of the outstanding capital stock of or other equity interests
in each such subsidiary except as set forth in Exhibit 21 or as
otherwise disclosed in writing to the Underwriters. Other than the
subsidiaries referred to above, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
of any other corporation or have any direct or indirect equity interest
or ownership of long-term debt in any firm, partnership, joint venture,
limited liability company, association or other entity, except as
described in the Prospectus. The
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outstanding shares of capital stock of or other equity interests in the
Company's subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and are owned, except as otherwise
set forth in Exhibit 21, by the Company free and clear of any mortgage,
pledge, lien, encumbrance, charge or adverse claim and are not the
subject of any agreement or understanding with any person and were not
issued in violation of any preemptive or similar rights; and there are
no outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or instruments related to
or entitling any person to purchase or otherwise acquire any shares of,
or any security convertible into or exchangeable or exercisable for,
the capital stock of, or other ownership interest in any of the
subsidiaries.
(viii) The statements set forth in the Prospectus, as of its
date of issue, describing the Shares and the Common Stock and this
Agreement, insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair
in all material respects.
(ix) Each of the Company and its subsidiaries is in possession
of and is operating in compliance with all franchises, grants,
authorizations, licenses, certificates, permits, easements, consents,
orders and approvals ("Permits") from all state, federal, foreign and
other regulatory authorities, and has satisfied the requirements
imposed by regulatory bodies, administrative agencies or other
governmental bodies, agencies or officials, that are required for the
Company and its subsidiaries lawfully to own, lease and operate their
properties and conduct their businesses as described in the Prospectus,
in each case with such exceptions, individually or in the aggregate, as
would not have a Material Adverse Effect; and, each of the Company and
its subsidiaries is conducting its business in compliance with all of
the laws, rules and regulations of each jurisdiction in which it
conducts its business, in each case with such exceptions, individually
or in the aggregate, as would not have a Material Adverse Effect; each
of the Company and its subsidiaries has filed all notices, reports,
documents or other information ("Notices") required to be filed under
applicable laws, rules and regulations, in each case, with such
exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; and, except as otherwise specifically
described in the Prospectus, neither the Company nor any of its
subsidiaries has received any notification from any court or
governmental body, authority or agency, relating to the revocation or
modification of any such Permit or, to the effect that any additional
authorization, approval, order, consent, license, certificate, permit,
registration or qualification ("Approvals") from such regulatory
authority is needed to be obtained by any of them, in any case where it
could be reasonably expected that obtaining such Approvals or the
failure to obtain such Approvals, individually or in the aggregate,
would have a Material Adverse Effect.
(x) The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and paid
all taxes shown as due thereon; all such tax returns are complete and
correct in all material respects; all tax liabilities are adequately
provided for on the books of the Company and its subsidiaries except to
such extent as would not have a Material Adverse Effect; the Company
and its subsidiaries have made all necessary payroll tax payments and
are current and up-to-date; and the
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Company and its subsidiaries have no knowledge of any tax proceeding or
action pending or threatened against the Company or its subsidiaries
which, individually or in the aggregate, might have a Material Adverse
Effect.
(xi) Except as described in the Prospectus, the Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent licenses, trademarks, service marks and trade
names necessary to conduct the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with
respect to any patents, patent licenses, trademarks, service marks or
trade names which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(xii) Except in each case such as would not have a Material
Adverse Effect, the Company and its subsidiaries have good and
marketable title in fee simple to all items of real property and good
and marketable title to all personal property owned by them or
disclosed as owned by them in the Prospectus, in each case free and
clear of all liens, encumbrances, restrictions and defects except such
as are described in the Prospectus or do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property; and any property held under lease
or sublease by the Company or any of its subsidiaries is held under
valid, duly authorized, subsisting and enforceable leases or subleases
with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property by the Company and
its subsidiaries; the Company and its subsidiaries have title insurance
on all real properties described in the Prospectus as having been
financed by them pursuant to a mortgage loan in an amount at least
equal to the aggregate principal amount of each such mortgage loan or
in an amount at least equal to the aggregate acquisition price paid by
the Company or its subsidiaries for such properties and the cost of
construction of the improvements located on such properties; and
neither the Company nor any of its subsidiaries has any notice or
knowledge of any material claim of any sort which has been, or may be,
asserted by anyone adverse to the Company's or any of its subsidiaries
rights as lessee or sublessee under any lease or sublease described
above, or affecting or questioning the Company's or any of its
subsidiaries' rights to the continued possession of the leased or
subleased premises under any such lease or sublease in conflict with
the terms thereof. To the knowledge of the Company, no lessee of any
portion of any of the properties described in the Prospectus is in
default under its respective lease and there is no event which, but for
the passage of time or the giving of notice or both, would constitute a
default under any such lease, except such defaults that would,
individually or in the aggregate, not have a Material Adverse Effect.
(xiii) No labor disturbance exists with the employees of the
Company or any of its subsidiaries or, to the Company's knowledge, is
imminent which, individually or in the aggregate, would have a Material
Adverse Effect. None of the employees of the Company or any of its
subsidiaries is represented by a union and, to the knowledge of the
Company and its subsidiaries, no union organizing activities are taking
place. Neither the Company nor any of its subsidiaries has violated any
federal, state or local law or
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foreign law relating to discrimination in hiring, promotion or pay of
employees, nor any applicable wage or hour laws, or the rules and
regulations thereunder, or analogous foreign laws and regulations,
which might, individually or in the aggregate, result in a Material
Adverse Effect.
(xiv) The Company and its subsidiaries are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which the Company and its
subsidiaries would have any liability; the Company and its subsidiaries
have not incurred and do not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which the Company or any of its subsidiaries would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects, and, to the Company's knowledge,
nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(xv) The Company and its subsidiaries maintain insurance of
the types and in the amounts generally deemed adequate for its
business, including, but not limited to, directors' and officers'
insurance, insurance covering real and personal property owned or
leased by the Company and 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. Neither
the Company nor any of its subsidiaries has been refused any insurance
coverage sought or applied for, and the Company has no reason to
believe that it and its subsidiaries will not be able to renew their
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(xvi) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in default
or violation with respect to its articles of incorporation or by-laws.
Neither the Company nor any of its subsidiaries is, or with the giving
of notice or lapse of time or both would be, in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, or in violation of any statutes, laws, ordinances or
governmental rules or regulations or any orders or decrees to which it
is subject, including, without limitation, Section 13 of the 1934 Act,
which default or violation, individually or in the aggregate, would
have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political office, or
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failed fully to disclose any contribution in violation of law, or (B)
made any payment to any state, federal or foreign government official,
or other person charged with similar public or quasi-public duty (other
than any such payment required or permitted by applicable law).
(xvii) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, or to the Company's knowledge, any
person from whom the Company or any of its subsidiaries acquired any of
such property, or any lessee, sublessee or operator of any such
property or portion thereof is a party, that, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect or which would materially and
adversely affect the consummation of the transactions contemplated
hereby or which is required to be disclosed in the Prospectus; to the
Company's knowledge, no such proceedings are threatened or
contemplated. Neither the Company nor any of its subsidiaries has, nor,
to the Company's knowledge, any seller, lessee, sublessee or operator
of any such properties, or portion thereof or any previous owner
thereof has, received from any governmental authority notice of any
material violation of any municipal, state or federal law, rule or
regulation (including without limitation any such law, rule or
regulation applicable to the health care industry) and including
foreign, federal, state or local law or regulation relating to human
health or safety or the environment or hazardous substances or
materials concerning such properties, or any part thereof which has
heretofore been cured, and neither the Company nor any of its
subsidiaries knows of any such violation, or any factual basis,
occurrence or circumstance that would give rise to a claim under or
pursuant to any such laws, rules or regulations which would,
individually or in the aggregate, have a Material Adverse Effect.
Except as described in the Prospectus, none of the property owned or
leased by the Company or any of its subsidiaries is, to the knowledge
of the Company, contaminated with any waste or hazardous substances,
and neither the Company nor any of its subsidiaries may be deemed an
"owner or operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as those
terms are defined in Section 9601 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section
9601 et seq. Neither the Company nor any of its subsidiaries, nor, to
the Company's knowledge, any seller, lessee, sublessee or operator of
any such property, or portion thereof has, received from any
governmental authority any written notice of any condemnation of or
zoning change affecting such properties, or any part thereof and the
Company does not know of any such condemnation or zoning change which
is threatened and which if consummated would have a Material Adverse
Effect, or a material adverse effect on any Material Subsidiary. No
contract or document of a character required to be described in the
Registration Statement, the Prospectus of any document incorporated by
reference therein or to be filed as an exhibit to the Registration
Statement or any document incorporated therein is not so described,
filed or incorporated by reference as required.
(xviii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment
10
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xix) The accounting firm which has certified the financial
statements filed with or incorporated by reference in and as a part of
the Registration Statement, is an independent public accounting firm
within the meaning of the 1933 Act and the 1933 Act Rules and
Regulations. The consolidated financial statements and schedules of the
Company, including the notes thereto, filed with or incorporated by
reference and as a part of the Registration Statement or Prospectus,
are accurate in all material respects and present fairly in all
material respects the financial condition of the Company and its
subsidiaries as of the respective dates thereof and the consolidated
results of operations and changes in financial position and
consolidated statements of cash flow for the respective periods covered
thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved except as otherwise disclosed therein. All adjustments
necessary for a fair presentation of results for such periods have been
made. The selected financial data included or incorporated by reference
in the Registration Statement and Prospectus present fairly in all
material respects the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements.
Any operating or other statistical data included or incorporated by
reference in the Registration Statement and Prospectus comply in all
material respects with the 1933 Act and the 1933 Act Rules and
Regulations and present fairly in all material respects the information
shown therein. The pro forma financial statements and the related notes
thereto included in or incorporated by reference in the Registration
Statement or the Prospectus present fairly, in all material respects,
the information shown therein, have been prepared in accordance with
the SEC's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(xx) Except as disclosed in the Prospectus, 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 because of the
filing of the Registration Statement or the consummation of the
transactions contemplated hereby. No person has the right, contractual
or otherwise, to cause the Company to permit such person to underwrite
the sale of any shares of the Common Stock or the Shares. Except for
this Agreement there are no contracts, agreements or understandings
between the Company or any of its subsidiaries and any person that
would give rise to a valid claim against the Company, its subsidiaries
or any Underwriter for a brokerage commission, finder's fee or like
payment in connection with the issuance, purchase and sale of the
Shares pursuant to this Agreement.
(xxi) The Company has not distributed and, prior to the later
to occur of (i) the Closing Date or the Option Closing Date, if any,
relating to the issuance of the Shares and (ii) completion of the
distribution of the Shares, will not distribute any offering
11
material in connection with the offering and sale of the Shares other
than the Registration Statement, the Prospectus Supplement, Preliminary
Prospectus or the Prospectus relating to such issuance.
(xxii) Except for the "lock-up" agreements to be executed by
the Company's directors and the executive officers set forth on Annex E
hereto, the Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Company's Common Stock, and the Company is not aware of
any such action taken or to be taken by affiliates of the Company.
(xxiii) (i) The Company is organized and operates in
conformity with the requirements for qualification as a real estate
investment trust ("REIT") under Sections 856 and 857 of the Code, (ii)
the Company qualified as a REIT for all taxable years prior to 2004,
and (iii) the Company's method of operation will enable it to meet the
requirements for taxation as a REIT under the Code for 2004 and all
subsequent taxable years, and the Company intends to qualify as a REIT
for all such years.
(xxiv) Except as described in the Prospectus, neither the
Company nor any of its subsidiaries has either given or received any
communication regarding the termination of, or intent not to renew, any
of the leasehold interests of lessees in the Company's and its
subsidiaries' properties held under lease, any property operating
agreement or any other agreement between the Company or its
subsidiaries and the operators of its properties or facilities, and no
such termination or non-renewal has been threatened by the Company, any
of its subsidiaries or, to the Company's knowledge, any other party to
any such lease, other than as would not have, individually or in the
aggregate, a Material Adverse Effect.
(xxv) Except for the subsidiaries ("Material Subsidiaries")
identified on Annex C to this Agreement, none of the subsidiaries of
the Company individually consist of more than 1.5%, or in the aggregate
consist of more than 10%, of the Company's (i) net assets, or (ii)
revenues for the most recently ended quarterly period.
(xxvi) There is and has been no failure on the part of the
Company and, to the Company's knowledge, any of the Company's directors
or officers, in their capacities as such, to comply with any provisions
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (collectively, the "Sarbanes Oxley
Act"), including Section 402 relating to loans and Sections 302 and 906
related to certifications.
(xxix) Neither the Company nor any subsidiary nor, to the
knowledge of the Company, any director, trustee, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture
12
partner or other person or entity, for the purpose of financing any
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
5. ADDITIONAL COVENANTS. The Company covenants and agrees with each of
the Underwriters as follows:
(a) The Company will timely transmit copies of the Prospectus, and any
amendments or supplements thereto, or a term sheet or abbreviated term sheet, as
applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations.
(b) The Company will deliver to the Underwriters as soon as practicable
after the date of this Agreement as many copies of the Prospectus (including all
documents incorporated by reference therein) as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act; the Company will promptly
advise the Underwriters of any request of the SEC for amendment of the
Registration Statement or for supplement to the Prospectus or for any additional
information, and of the issuance by the SEC or any state or other jurisdiction
or other regulatory body of any stop order under the 1933 Act or other order
suspending the effectiveness of the Registration Statement (as amended or
supplemented) or preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending the qualification or registration of the Shares
for offering or sale in any jurisdiction, and of the institution or threat of
any proceedings therefor, of which the Company shall have received notice or
otherwise have knowledge prior to the completion of the distribution of the
Shares; and the Company will use its best efforts to prevent the issuance of any
such stop order or other order and, if issued, to secure the prompt removal
thereof.
(c) The Company will not file any amendment or supplement to the
Registration Statement, the Prospectus (or any other prospectus relating to the
Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that
differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not
file any document under the 1934 Act before the termination of the offering of
the Shares by the Underwriters if the document would be deemed to be
incorporated by reference into the Registration Statement or the Prospectus, of
which the Underwriters shall not previously have been advised and furnished with
a copy or to which the Underwriters shall have reasonably objected or which is
not in compliance with the 1933 Act Rules and Regulations; and the Company will
promptly notify you after it shall have received notice thereof of the time when
any amendment to the Registration Statement becomes effective or when any
supplement to the Prospectus has been filed.
(d) During the period when the Prospectus relating to any of the Shares
is required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will comply, at its own expense, with all requirements imposed by the
1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended,
and by the rules and regulations of the SEC thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales
13
of or dealing in the Shares during such period in accordance with the provisions
hereof and as contemplated by the Prospectus.
(e) If, during the period when the Prospectus relating to any of the
Shares is required to be delivered under the 1933 Act by any Underwriter or
dealer, (i) any event relating to or affecting the Company or of which the
Company shall be advised in writing by the Underwriters shall occur as a result
of which, in the opinion of the Company or the Underwriters, the Prospectus as
then amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) it shall be necessary to amend or supplement the Registration
Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and
Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company
will forthwith at its expense prepare and file with the SEC, and furnish to the
Underwriters a reasonable number of copies of, such amendment or supplement or
other filing that will correct such statement or omission or effect such
compliance.
(f) From time to time as requested by the Underwriters and during the
period when the Prospectus relating to the Shares is required to be delivered
under the 1933 Act by any Underwriter or dealer, the Company will furnish such
proper information as may be lawfully required and otherwise cooperate in
qualifying the Shares for offer and sale under the securities or blue sky laws
of such jurisdictions as the Underwriters may reasonably designate and will file
and make in each year such statements or reports as are or may be reasonably
required by the laws of such jurisdictions; provided, however, that the Company
shall not be required to qualify as a foreign corporation or shall be required
to qualify as a dealer in securities or to file a general consent to service of
process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of
the 1933 Act Rules and Regulations, the Company will make generally available to
the holders of the Shares, as soon as practicable, an earnings statement (which
need not be audited) in reasonable detail covering the 12 months beginning not
later than the first day of the month next succeeding the month in which
occurred the effective date (within the meaning of Rule 158) of this Agreement.
(h) The Company shall file promptly all documents required to be filed
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 0000 Xxx. The
Company shall furnish to its security holders annual reports containing
financial statements audited by independent public accountants and quarterly
reports containing financial statements and financial information which may be
unaudited. The Company will deliver to the Underwriters at its principal
executive office a reasonable number of copies of annual reports, quarterly
reports, current reports and copies of all other documents, reports and
information furnished by the Company to its shareholders or filed with any
securities exchange or market pursuant to the requirements of such exchange or
market or with the SEC pursuant to the 1933 Act or the 0000 Xxx. The Company
shall deliver to the Underwriters similar reports with respect to any
significant subsidiaries, as that term is defined in the 1933 Act Rules and
Regulations, which are not consolidated in the Company's financial statements.
Any report, document or other information required to be furnished under this
paragraph (h) shall be furnished as soon as practicable after such report,
document or information becomes available.
14
(i) During the period beginning from the date of this Agreement and
continuing to and through the Closing Date (and, if applicable, the Option
Closing Date), the Company will not, without the prior written consent of the
Representatives, offer for sale, sell or enter into any agreement to sell, or
otherwise dispose of, or publicly announce an intention to effect any such
transactions, any securities of the Company.
(j) The Company will apply the proceeds from the sale of the Shares as
set forth in the description under "Use of Proceeds" in the Prospectus, as
amended or supplemented, which description complies and will comply in all
respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the SEC in
connection with the registration of the Shares under the 1933 Act.
(l) After the date of this Agreement and prior to the Closing Date
(and, if applicable, the Option Closing Date), the Company will furnish to you,
as soon as they have been prepared, and prior to any filing with the SEC or
public disclosure, copies of any unaudited interim consolidated financial
statements of the Company and its subsidiaries for any periods subsequent to the
periods covered by the financial statements appearing in the Registration
Statement and the Prospectus.
(m) After the date of this Agreement and prior to the Closing Date
(and, if applicable, the Option Closing Date), the Company will not issue any
press releases or other communications directly or indirectly and will hold no
press conferences with respect to the Company or any of its subsidiaries, the
financial condition, results of operations, business, properties, assets or
liabilities of the Company or any of its subsidiaries, or the offering of the
Shares, without your prior written consent.
(n) The Company will use its best efforts to obtain approval for, and
maintain the listing of the Shares on, the NYSE and to file with the NYSE all
documents and notices required by the NYSE of companies that have securities
listed on included on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are executed
in accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its subsidiaries is
permitted only in accordance with management's authorization, and (4) the
recorded accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act for
the sale of the Shares, the Company shall both file an Abbreviated Registration
Statement with the SEC in
15
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 of the 1933 Act by the earlier of (i) 8:00 P.M., New York City time, on the
date of this Agreement, and (ii) the time that confirmations are given or sent,
as specified by Rule 462(b)(2).
(q) If at any time during the 90-day period after the date of this
Agreement, any rumor, publication or event relating to or affecting the Company
shall occur as a result of which in your opinion the market price of the Shares
has been or is likely to be materially affected (regardless of whether such
rumor, publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising the
Company to the effect set forth above, forthwith consult with you concerning the
issuance of a press release or other public statement, responding to or
commenting on such rumor, publication or event.
(r) The Company will cause each of its directors and executive
officers set forth on Annex E hereto to execute and deliver to the
Representatives "lock-up" agreements, each substantially in the form of Annex D
hereto.
(s) The Company will continue to qualify as a REIT under the Code.
(t) For the fiscal year ended December 31, 2003, the Company had
retained Ernst & Young LLP as its qualified accountants. For the fiscal year
ended December 31, 2004, the Company has retained KPMG LLP as its qualified
accountants. Each year, in the course of its audit Ernst & Young reviewed the
Company's test procedures and conducted annual compliance reviews designed to
determine the Company's compliance with REIT provisions of the Code and
otherwise has assisted the Company in monitoring appropriate accounting systems
and procedures designed to determined compliance with the REIT provisions of the
Code. For the 2004 fiscal year the Company will use its best efforts to engage
KPMG LLP to review the Company's test procedures and conduct annual compliance
reviews designed to determine the Company's compliance with REIT provisions of
the Code and otherwise assist the Company in monitoring appropriate accounting
systems and procedures designed to determined compliance with the REIT
provisions of the Code.
(u) The Company agrees to give, and will cause each of its subsidiaries
to give, and shall direct its financial advisors, accountants and legal counsel
to give, upon reasonable notice, the Underwriters and counsel to the
Underwriters and their respective authorized representatives reasonable access
to all offices and other facilities and to all contracts, agreements,
commitments, books and records of or pertaining to the Company or its
subsidiaries, will permit the foregoing to make such reasonable inspections as
they may require or would be appropriate in fulfilling any due diligence or
other obligations as provided by law and will cause its officers to furnish to
the Underwriters with such financial and operating data and other information
with respect to the business and properties of the Company and its subsidiaries
as the Underwriters may from time to time reasonably request. The Underwriters,
counsel to the Underwriters, and their respective authorized representatives
will use such information only in full compliance with Regulation FD.
16
(v) During the period beginning from the date of this Agreement and
continuing through the Closing Date (and, if applicable, the Option Closing
Date), the Company agrees not to, and to use its reasonable best efforts to
cause its officers, directors and affiliates not to, (i) take, directly or
indirectly, any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the
future reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the sale
or resale of any security of the Company, (ii) sell, bid for, purchase or pay
anyone any compensation for soliciting purchases of the Shares other than
pursuant to this Agreement or (iii) pay or agree to pay to any person any
compensation for soliciting any order to purchase any other securities of the
Company.
(w) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and will use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply with such laws,
rules and regulations, including, without limitation, the provisions of the
Sarbanes Oxley Act.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters hereunder to purchase the Shares on the Closing Date or each
Option Closing Date, as the case may be, shall be subject to the accuracy as of
the date hereof, and as of the Closing Date (and, if applicable, any Option
Closing Date), of the representations and warranties of the Company contained
herein, to the performance by the Company of its covenants and obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not previously become effective,
the Registration Statement and all post-effective amendments thereto shall have
become effective not later than 11:00 P.M., New York City time, on the date of
this Agreement, or at such later date and time as may be approved by the
Underwriters; if the Company has elected to rely on Rule 462(b) under the 1933
Act, the Abbreviated Registration Statement shall have become effective not
later than the earlier of (x) 8:00 P.M. New York City time, on the date of this
Agreement, or (y) at such later date and time as may be approved by the
Underwriters. All filings required by Rule 424 and Rule 430A of the 1933 Act
Rules and Regulations shall have been made. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceeding for that purpose shall have been initiated
or, to the knowledge of the Company or any Underwriter, threatened or
contemplated by the SEC, and any request of the SEC for additional information
(to be included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the
Underwriters.
(b) No Underwriter shall have advised the Company on or prior to the
Closing Date (and, if applicable, the Option Closing Date), that the
Registration Statement or Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of counsel to the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
17
(c) On the Closing Date (and, if applicable, the Option Closing Date),
you shall have received one or more opinions of counsel for the Company,
addressed to you and dated the Closing Date (and, if applicable, the Option
Closing Date), in substantially the forms of Annex A and Annex B.
In rendering the opinions, such counsel may rely, (1) as to matters
involving laws of any jurisdiction other than New York or the United States,
upon opinions addressed to the Underwriters of other counsel satisfactory to it
and Xxxxx Xxxx LLP, and (2) as to all matters of fact, upon certificates and
written statements of the executive officers of, and accountants for, the
Company, provided, in either case, that such counsel shall state in their
opinion that they and the Underwriters are justified in relying thereon.
Such counsel shall also confirm that during the preparation of the
Registration Statement and Prospectus, such counsel participated in conferences
with officers and representatives of the Company and its independent
accountants, at which conferences the contents of the Registration Statement and
the Prospectus including all documents filed under the 1934 Act and deemed
incorporated by reference therein were discussed, reviewed and revised. On the
basis of the information which was developed in the course thereof, considered
in light of such counsel's understanding of applicable law and the experience
gained by such counsel through their practice thereunder, without such counsel
assuming responsibility for the accuracy and completeness of such statements
except to the extent expressly provided above, such counsel shall confirm that
nothing came to their attention that would lead them to believe that either the
Registration Statement (including any document filed under the 1934 Act and
deemed incorporated by reference therein), as of the Effective Date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
the Prospectus or any amendment or supplement thereto (including any document
filed under the 1934 Act and deemed incorporated by reference therein) as of its
respective issue date and as of the Closing Date (and, if applicable, the Option
Closing Date), contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (other than the financial statements
or other financial data as to which such counsel need express no opinion).
(d) You shall have received on the Closing Date (and, if applicable,
the Option Closing Date), from Xxxxx Xxxx LLP, counsel to the Underwriters, such
opinion or opinions, dated the Closing Date (and, if applicable, the Option
Closing Date) with respect to such matters as you may reasonably require; and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purposes of enabling them to review or pass on the
matters referred to in this Section 6 and in order to evidence the accuracy,
completeness and satisfaction of the representations, warranties and conditions
herein contained.
(e) On the date of this Agreement and on the Closing Date (and, if
applicable, the Option Closing Date), you shall have received from its
independent accountants, a letter or letters, dated the date of this Agreement
and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to you, confirming that they
are
18
independent public accountants with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Rules and Regulations, and containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information, including any pro forma financial information, relating
to the Company contained in the Registration Statement and Prospectus.
(f) Except as contemplated in the Prospectus, (i) neither the Company
nor any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree; and (ii)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, or entered into any transactions, and there shall not have been any
change in the capital stock or short-term or long-term debt of the Company and
its subsidiaries or any change, or any development involving or which might
reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, business, affairs, management, prospects,
results of operations or cash flow of the Company and its subsidiaries, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
on the Closing Date (and, if applicable, the Option Closing Date) on the terms
and in the manner contemplated in the Prospectus.
(g) There shall not have occurred any of the following: (i) a general
moratorium on commercial banking activities declared by either federal or any
state authorities; (ii) the outbreak or escalation of hostilities or escalation
of acts of terrorism involving the United States or the declaration by the
United States of a national emergency or war, which in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares in the manner contemplated in the Prospectus; (iii) a suspension
or material limitation in trading in the Company's securities, or in securities
generally, on the NYSE; or (iv) any calamity or crisis, change in national,
international or world affairs, act of God, change in the international or
domestic markets, or change in the existing financial, political or economic
conditions in the United States or elsewhere, which in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares in the manner contemplated in the Prospectus.
(h) You shall have received certificates, dated the Closing Date (and,
if applicable, the Option Closing Date) and signed by the Chief Executive
Officer and the Chief Financial Officer of the Company, in their capacities as
such, stating that:
(i) the condition set forth in Section 6(a) has been fully
satisfied;
(ii) they have carefully examined the Registration Statement
and the Prospectus as amended or supplemented and all documents
incorporated by reference therein and nothing has come to their
attention that would lead them to believe that either
19
the Registration Statement or the Prospectus, or any amendment or
supplement thereto or any documents incorporated by reference therein
as of their respective effective, issue or filing dates, contained, and
the Prospectus as amended or supplemented and all documents
incorporated by reference therein and when read together with the
documents incorporated by reference therein, at such Closing Date,
contains any untrue statement of a material fact, or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(iii) The Company's Chief Executive Officer and Chief
Financial Officer are responsible for establishing and maintaining
disclosure controls and procedures (as defined in Rules 13a-15(e) and
15d-15(e) of the 1934 Act Rules and Regulations) and have (a) designed
such disclosure controls and procedures, or caused such disclosure
controls to be designed under their supervision, to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to them by others within those
entities, particularly during the periods in which the Prospectus was
being prepared, (b) evaluated the effectiveness of the Company's
disclosure controls and procedures, and (c) has timely disclosed in the
Prospectus any changes in the Company's internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company's internal control over financial
reporting.
(iv) since the date of this Agreement, there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statement or the Prospectus which has not been so set
forth and there has been no document required to be filed under the
1934 Act and the 1934 Act Rules and Regulations that upon such filing
would be deemed to be incorporated by reference into the Prospectus
that has not been so filed;
(v) all representations and warranties made herein by the
Company are true and correct at such Closing Date, with the same effect
as if made on and as of such Closing Date, and all agreements herein to
be performed or complied with by the Company on or prior to such
Closing Date have been duly performed and complied with by the Company;
(vi) neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree;
(vii) except as disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, other than in the ordinary course of business, or entered
into any transactions not in the ordinary course of business, which in
either case are material to
20
the Company or such subsidiary; and there has not been any change in
the capital stock or material increase in the short-term debt or
long-term debt of the Company or any of its subsidiaries or any
material adverse change or any development involving or which may
reasonably be expected to result in a Material Adverse Effect; and
there has been no dividend or distribution of any kind, paid or made by
the Company on any class of its capital stock;
(viii) the Company is in compliance, both prior to and after
giving effect to the transactions contemplated hereby, with the
financial covenants set forth in the Company's credit agreement and
other agreements and instruments respecting outstanding indebtedness of
the Company and its subsidiaries; and
(ix) covering such other matters as you may reasonably
request.
(i) The Company shall have furnished to you at the Closing Date (and,
if applicable, the Option Closing Date) such further information, opinions,
certificates, letters and documents as you may have reasonably requested.
(j) The Shares shall have been approved for trading upon official
notice of issuance on the New York Stock Exchange.
(k) The Representatives shall have received "lock-up" agreements, each
substantially in the form of Annex D hereto from each of the Company's directors
and executive officers set forth on Annex E hereto and such agreements shall be
in full force and effect on the Closing Date (and, if applicable, the Option
Closing Date).
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to Xxxxx Xxxx LLP, counsel for the Underwriters. The
Company will furnish you with such signed and conformed copies of such opinions,
certificates, letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall not
have been satisfied at or prior to the Closing Date (and, if applicable, the
Option Closing Date) or waived by you in writing, this Agreement may be
terminated by you on notice to the Company.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify
and hold harmless the Underwriters from and against any losses, damages or
liabilities, joint or several, to which the Underwriters may become subject,
under the 1933 Act or otherwise, insofar as such losses, damages or liabilities
(or actions or claims in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereto, or in any blue sky application
or other document executed by the Company or based on any information furnished
in writing by the Company, filed in any state or other jurisdiction in order to
qualify any or all of the Shares under the securities laws thereof (the "Blue
Sky Application"), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or an untrue statement or alleged untrue statement of a
material fact
21
contained in any Prospectus Supplement, Preliminary Prospectus, the Prospectus
or any other prospectus relating to the Shares or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or (ii) any untrue statement or alleged untrue
statement made by the Company in Section 4 of this Agreement or in any
representation or warranty by the Company to the Underwriters of the failure by
the Company to perform when and as required by any agreement or covenant
contained herein and will reimburse each Underwriter for any legal or other
expenses incurred by such Underwriter in connection with investigating,
preparing, pursuing or defending against any such loss, damage, liability or
action or claim, including, without limitation, any investigation or proceeding
by any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to the indemnified party, as such
expenses are incurred (including such losses, damages, liabilities or expenses
to the extent of the aggregate amount paid in settlement of any such action or
claim, provided that (subject to Section 7(d) hereof) any such settlement is
effected with the written consent of the Company); provided, however, that the
Company shall not be liable in any such case to the extent, but only to the
extent, that any such loss, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Prospectus Supplement, Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Shares, or any
such amendment or supplement, in reliance upon and in conformity with written
information relating to the Underwriters furnished to the Company by you,
expressly for use in the preparation thereof.
(b) The Underwriters will indemnify and hold harmless the Company from
and against any losses, damages or liabilities to which the Company may become
subject, under the 1933 Act or otherwise, insofar as such losses, damages or
liabilities (or actions or claims in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Prospectus Supplement, Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Shares, or any
amendment or supplement thereto, or any Blue Sky Application, or arise out of
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Prospectus Supplement, Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Shares, or any
such amendment or supplement, or any Blue Sky Application, in reliance upon and
in conformity with written information relating to the Underwriters furnished to
the Company by you, expressly for use in the preparation thereof, and will
reimburse the Company for any legal or other expenses incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred (including such losses, damages, liabilities or expenses
to the extent of the aggregate amount paid in settlement of any such action or
claim, provided that (subject to Section 7(d) hereof) any such settlement is
effected with the written consent of the Underwriters.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or 7(b) hereof of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under Section 7(a) or 7(b) hereof, notify
22
each such indemnifying party in writing of the commencement thereof, but the
failure so to notify such indemnifying party shall not relieve such indemnifying
party from any liability except to the extent that it has been prejudiced in any
material respect by such failure or from any liability that it may have to any
such indemnified party otherwise than under Section 7(a) or 7(b) hereof. In case
any such action shall be brought against any such indemnified party and it shall
notify each indemnifying party of the commencement thereof, each such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party under Section 7(a)
or 7(b) hereof similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and, after notice from such indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
under Section 7(a) or 7(b) hereof for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party at the expense of the indemnifying party has been
authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by such counsel that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense, or
certain aspects of the defense, of such action (in which case the indemnifying
party shall not have the right to direct the defense of such action with respect
to those matters or aspects of the defense on which a conflict exists or may
exist on behalf of the indemnified party) or (iii) the indemnifying party shall
not in fact have employed counsel reasonably satisfactory to such indemnified
party to assume the defense of such action, in any of which events such fees and
expenses to the extent applicable shall be borne, and shall be paid as incurred,
by the indemnifying party. If at any time such indemnified party shall have
requested such indemnifying party under Section 7(a) or 7(b) hereof to reimburse
such indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a) or 7(b) hereof effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of such request for reimbursement, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No such indemnifying party
shall, without the written consent of such indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not such
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of such indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any such indemnified party.
In no event shall such indemnifying parties be liable for the fees and expenses
of more than one counsel, including any local counsel, for all such indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
23
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to indemnify or hold harmless an indemnified
party under Section 7(a) or 7(b) hereof in respect of any losses, damages or
liabilities (or actions or claims in respect thereof) referred to therein, then
each indemnifying party under Section 7(a) or 7(b) hereof shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
damages or liabilities (or actions or claims in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 7(c) hereof and such
indemnifying party was prejudiced in a material respect by such failure, then
each such indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault, as applicable, of the
Company, on the one hand, and the Underwriters, on the other hand, in connection
with the statements or omissions that resulted in such losses, damages or
liabilities (or actions or claims in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by, as
applicable, the Company, on the one hand, and the Underwriters, on the other
hand, shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault, as applicable, of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 7(d). The amount
paid or payable by such an indemnified party as a result of the losses, damages
or liabilities (or actions or claims in respect thereof) referred to above in
this Section 7(d) shall be deemed to include any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7(d),
the Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that the Underwriters have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director, employee, agent
or other representative and to each person, if any, who controls any Underwriter
within the meaning of the 1933 Act; and the obligations of the Underwriters
under this Section 7 shall be in addition to any liability that the respective
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each
24
officer and director of the Company who signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the 1933
Act.
(f) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including, without limitation, the
provisions of this Section 7, and are fully informed regarding such provisions.
They further acknowledge that the provisions of this Section 7 fairly allocate
the risks in light of the ability of the parties to investigate the Company and
its business in order to assure that adequate disclosure is made in the
Registration Statement, any Prospectus Supplement, Preliminary Prospectus, the
Prospectus, and any supplement or amendment thereof, as required by the 1933
Act.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The respective
representations, warranties, agreements and statements of the Company and the
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain operative and in full
force and effect regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of the Underwriters or any controlling
person of any Underwriter, the Company or any of its officers, directors or any
controlling persons, and shall survive delivery of and payment for the Shares
hereunder.
9. SUBSTITUTION OF UNDERWRITERS. (a) If any Underwriter shall default
in its obligation to purchase the Shares which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or parties
reasonably satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Shares, or the Company
notifies you that it has so arranged for the purchase of such Shares, you or the
Company shall have the right to postpone the Closing Date for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any persons substituted under this Section 9 with like effect as
if such person had originally been a party to this Agreement with respect to
such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you and the Company
as provided in subsection (a) above, the aggregate number of Shares which
remains unpurchased does not exceed one-eleventh of the total Shares to be sold
on the Closing Date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the Shares which such Underwriter agreed
to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which
25
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you and the Company
as provided in subsection (a) above, the number of Shares which remains
unpurchased exceeds one-eleventh of the total Shares to be sold on the Closing
Date, or if the Company shall not exercise the right described in subsection (b)
above to require the non-defaulting Underwriters to purchase Shares of the
defaulting Underwriter or Underwriters, then this Agreement (or, with respect to
the Option Closing Date, the obligations of the Underwriters to purchase and of
the Company to sell the Option Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 11 hereof and the indemnity and contribution agreements in Section 7
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. TERMINATION. This Agreement may be terminated by you at any time at
or prior to the Closing Date (or, if applicable, the Option Closing Date) by
notice to the Company if any condition specified in Section 6 hereof shall not
have been satisfied on or prior to such Closing Date. Any such termination shall
be without liability of any party to any other party except as provided in
Sections 7 and 11 hereof. If you terminate this Agreement as provided in Section
10, you shall notify the Company by telephone or telegram, confirmed in writing
as provided in Section 12.
11. COSTS AND EXPENSES. The Company, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated, will bear
and pay the costs and expenses incident to the registration of the Shares and
public offering thereof, including, without limitation, (a) all expenses
(including transfer taxes) incurred in connection with the delivery to the
Underwriters of the Shares, the filing fees of the SEC, the fees and expenses of
the Company's counsel and accountants, (b) the preparation, printing, filing,
delivery and shipping of the Registration Statement, each Prospectus Supplement,
Preliminary Prospectus, the Prospectus and any amendments or supplements thereto
and the printing, delivery and shipping of this Agreement and other underwriting
documents and any instruments or documents related to any of the foregoing, (c)
the furnishing of copies of such documents to the Underwriters, (d) the
registration or qualification of the Shares for offering and sale under the
securities laws of the various states and other jurisdictions, including the
reasonable fees and disbursements of counsel to the Underwriters relating to
such registration or qualification and in connection with preparing any Blue Sky
Memoranda or related analysis, (e) all printing and engraving costs related to
preparation of the certificates for the Shares, including transfer agent and
registrar fees, (f) all fees and expenses relating to the authorization of the
Shares for trading on the NYSE, (g) all travel expenses, including air fare and
accommodation expenses, of representatives of the Company in connection with the
offering of the Shares, (h) the approval of the Shares by DTC for "book-entry"
transfer, and (i) all of the other costs and expenses incident to the
performance by the Company of the registration and offering of the Shares;
provided, that the Underwriters will bear and pay the fees and expenses of the
Underwriters' counsel (except as specifically provided in this Section 11), the
Underwriters' out-of-pocket expenses, and any
26
advertising costs and expenses incurred by the Underwriters incident to the
public offering of the Shares.
12. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/x Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (fax no.: (000) 000-0000); Attention: Xxxxxx
X. Xxxxxxxx, with a copy to Xxxxx Xxxx LLP, attention: J. Xxxx Xxxxxx, facsimile
number (000) 000-0000, or if sent to the Company shall be mailed, delivered,
sent by facsimile transmission, or telegraphed and confirmed to the Company at
0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, attention: General
Counsel, facsimile number (000) 000-0000, with a copy to Xxxxxx Xxxxxxx Xxxxxx &
Xxxxx, PLLC, Attention: Xxxxxxxx X. Xxxx, facsimile number (000) 000-0000.
13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and, to the extent provided in
Sections 7 and 9, the officers and directors of the Company and each person who
controls the Company or the Underwriters and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, corporation or
other entity any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns and said controlling persons and said officers and directors, and for
the benefit of no other person, corporation or other entity. No purchaser of any
of the Shares from any Underwriter shall be construed a successor or assign by
reason merely of such purchase.
In all dealings hereunder, you shall act on behalf of each of the
several Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of the Underwriters,
made or given by you jointly or by Xxxx Xxxxx on behalf of you as the
representatives, as if the same shall have been made or given in writing by the
Underwriters.
14. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth in
the third paragraph under the caption "Underwriting" in the Prospectus
Supplement (relating to dealer concessions) constitute the only information
furnished by or on behalf of the Underwriters through you as such information is
referred to in Section 4(a)(ii) and Section 7 hereof.
15. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
16. PRONOUNS. Whenever a pronoun of any gender or number is used
herein, it shall, where appropriate, be deemed to include any other gender and
number.
17. TIME OF ESSENCE. Time shall be of the essence in this Agreement.
27
18. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
the choice of law or conflict of laws principles thereof.
28
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company and the Underwriters.
HEALTHCARE REALTY TRUST INCORPORATED
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and Chief Executive
Officer
Accepted as of the date hereof:
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By: Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
For themselves and as Representatives of the
other Underwriters named in Schedule I hereto
29
SCHEDULE I
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated....................... 2,000,000
X.X. Xxxxxxx & Sons, Inc................................... 1,000,000
Wachovia Capital Markets, LLC.............................. 1,000,000
---------
Total:............................................ 4,000,000
ANNEX A
(i) The Registration Statement and all post-effective
amendments thereto and the Abbreviated Registration Statement, if any,
have become effective under the 1933 Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) or
otherwise has been made in the manner and within the time period
required thereby; and, to the knowledge of such counsel, no stop or
other order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act or under
the securities laws of any jurisdiction.
(ii) The Registration Statement and the Prospectus, and each
amendment or supplement thereto (including any document incorporated by
reference into the Prospectus), as of their respective effective or
issue date, comply as to form and appear on their face to be
appropriately responsive in all material respects to the requirements
of Form S-3 under the 1933 Act and the applicable 1933 Act Rules and
Regulations (except that such counsel need express no opinion as to the
financial statements, notes thereto, supporting schedules or other
financial or statistical information included in or incorporated by
reference into or omitted from the Registration Statement or the
Prospectus); the conditions for use of Form S-3 have been satisfied;
and, as of the date they were filed with the SEC, the documents
incorporated by reference in the Prospectus appear on their face to
comply as to form and be appropriately responsive in all material
respects with the requirements of the 1934 Act and the applicable 1934
Act Rules and Regulations (except that such counsel need express no
opinion as to the financial statements, notes thereto, supporting
schedules or other financial or statistical information included in or
incorporated by reference into or omitted from the Registration
Statement or the Prospectus).
(iii) The Agreement has been duly authorized, executed and
delivered by the Company and each constitutes a valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
the Exceptions and except to the extent the enforceability of the
indemnification and contribution provisions of Section 7 of the
Agreement may be limited by public policy considerations.
(iv) The Company and its Material Subsidiaries are validly
existing as corporations or other organizations in good standing under
the laws of the states or other jurisdictions in which they are
incorporated or organized, with full power and authority (corporate and
other) to own, lease and operate their properties and conduct their
businesses as described in the Prospectus and, with respect to the
Company, to execute and deliver, and perform the Company's obligations
under, the Agreement; the Company and its Material Subsidiaries are
duly qualified to do business as foreign corporations or other
organizations in good standing in each state or other jurisdiction in
which their ownership or leasing of property or conduct of business
legally requires such
qualification, except where the failure to be so qualified,
individually or in the aggregate, would not have a Material Adverse
Effect.
(v) The outstanding shares of capital stock or other
securities evidencing equity ownership of each of the Material
Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and, to the knowledge of such counsel, (a) are
owned by the Company free and clear of any mortgage, pledge, lien,
encumbrance, charge or adverse claim and are not the subject of any
agreement or understanding with any person, and (b) were not issued in
violation of any preemptive or similar rights; and, to the knowledge of
such counsel, except as disclosed in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale, or instruments related to
or entitling any person to purchase or otherwise acquire any shares of,
or any security convertible into or exercisable or exchangeable for,
any such shares of capital stock or other ownership interest of any of
such subsidiaries.
(vi) The issuance and sale of the Shares and the execution,
delivery and performance by the Company of the Agreement and the
consummation of the transactions herein contemplated, will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company or any of its subsidiaries under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of
the Company or any of its subsidiaries is subject, except to such
extent as, individually or in the aggregate, does not have a Material
Adverse Effect, nor will such action result in any violation of the
provisions of the Company's articles of incorporation or bylaws or any
statute, rule, regulation or other law, or any order or judgment known
to such counsel, of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties.
(vii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required in connection with the execution, delivery and performance of
the Agreement, and the issuance and sale of the Shares, and the
consummation of the transactions contemplated hereby, except such as
may be required under the 1933 Act or the 1933 Act Rules and
Regulations and have been obtained, or as may be required by the NYSE
or under state securities or blue sky laws in connection with the
purchase and distribution of the Shares by the Underwriters. Each of
the Company and its subsidiaries has filed all Notices pursuant to, and
has obtained all Approvals required to be obtained under, and has
otherwise complied with all requirements of, all applicable laws and
regulations (other than state securities or blue sky laws) in
connection with the issuance and sale of the Shares, in each case with
such exceptions, individually or in the aggregate, as would not affect
the validity of the Shares, their issuance or the transactions
contemplated hereby or have a Material
32
Adverse Effect; and no such Notices or Approvals (other than those
required to be filed with or obtained from state securities or blue sky
law authorities) are required to be filed or obtained by the Company or
any of its subsidiaries in connection with the execution, delivery and
performance of this Agreement, the issuance and sale of the Shares or
the transactions contemplated hereby, in each case with such
exceptions, individually or in the aggregate, as would not affect the
validity of the Shares, their issuance or the transactions contemplated
hereby or have a Material Adverse Effect.
(viii) The Company has duly and validly authorized capital
stock as set forth in the Prospectus; all outstanding shares of Common
Stock of the Company and the Shares conform, or when issued will
conform in all material respects, as to legal matters to the
description thereof in the Prospectus and have been duly authorized,
validly issued, fully paid and non assessable; and the Shares to be
sold by the Company have been duly authorized and, when delivered and
paid for in accordance with the Agreement, will be validly issued,
fully paid and non-assessable. All corporate action required to be
taken by the Company for the authorization, issue and sale of the
Shares has been duly and validly taken. The Shares are duly authorized
for trading, subject to official notice of issuance and evidence of
satisfactory distribution on the NYSE. The form of specimen certificate
representing the Shares filed as an exhibit to the Registration
Statement is in valid and sufficient form. The issuance of the Shares
to be purchased from the Company hereunder is not subject to preemptive
or other similar rights, or any restriction upon the voting or transfer
thereof (except for rights and restrictions relating primarily to the
Company's status as a REIT as described in Section 4(a) of the
Agreement). The issuance and sale of the Shares by the Company to the
Underwriters and the fulfillment of and compliance with all of the
provisions of the Agreement by the Company do not result in a breach of
any terms or provisions, or constitute a default under, any existing
obligation of the Company pursuant to applicable law or the articles of
incorporation, bylaws or governing documents of the Company or, to the
knowledge of such counsel, any material agreement to which the Company
or any of its subsidiaries is a party or by which any of them may be
bound; and, to such counsel's knowledge, except as described in the
Prospectus, there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or rights
related to or entitling any person to purchase or otherwise acquire any
shares of, or any security convertible into or exercisable or
exchangeable for, the capital stock of, or other ownership interest in,
the Company
(ix) To the knowledge of such counsel, the Company and each of
its subsidiaries hold all Permits from all state, federal and other
regulatory authorities, and have satisfied in all material respects the
requirements imposed by regulatory bodies, administrative agencies or
other governmental bodies, agencies or officials, that are required for
the Company and its subsidiaries lawfully to own, lease and operate its
properties and conduct its business as described in the Prospectus, in
each case with such exceptions, individually or in the aggregate, as
would not have a Material Adverse Effect, and, to the knowledge of such
counsel, each of the Company and its subsidiaries is
33
conducting its business in compliance in all material respects with all
of the laws, rules and regulations of each jurisdiction in which it
conducts its business.
(x) The statements made in the Prospectus under the captions
"The Company," "Forward Looking Statements and Risk Factors,"
"Business," "Description of Common Stock" and "Federal Income Tax and
ERISA Considerations" and under Item 15 of Part II of the Registration
Statement, and in the Company's Annual Report on Form 10-K of the year
ended December 31, 2003 under "Item 1, Business," "Item 3, Legal
Proceedings," "Item 11, Executive Compensation" and "Item 13, "Certain
Relationships and Related Transactions," and in the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2004 under Part II,
Item 1, "Legal Proceedings" to the extent that they constitute
summaries of statutes, laws, ordinances, rules, regulations, legal or
governmental proceedings, contracts and other documents referred to
therein, have been reviewed by such counsel and fairly present in all
material respects the information disclosed therein and as required
under the 1933 Act and the 1933 Act Rules and Regulations.
(xi) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in default
or violation with respect to its articles of incorporation or by-laws.
To the knowledge of such counsel, neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse of time or both
would be, in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the properties or assets of the Company or any of
its subsidiaries is subject, or in violation of any statutes, laws,
ordinances or governmental rules or regulations or any orders or
decrees to which it is subject, including, without limitation, Section
13 of the 1934 Act, which default or violation, individually or in the
aggregate, would have a Material Adverse Effect.
(xii) To the knowledge of such counsel, (A) there are no
material (individually, or in the aggregate) legal, governmental or
regulatory proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or of which the business or
properties of the Company or any of its subsidiaries is the subject
which are not disclosed in the Registration Statement and Prospectus;
(B) there are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which are not
described or filed as required; and (C) there are no statutes,
ordinances, laws, rules or regulations required to be described in the
Registration Statement or Prospectus which are not described as
required.
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
34
(xiv) All securities of the Company known to us to have been
issued since September 10, 2003 were issued and sold in material
compliance with all applicable federal and state laws.
(xv) To the knowledge of such counsel and except as disclosed
in the Prospectus, no holder of any security of the Company has any
right to require registration of shares of the Common Stock or any
other security of the Company because of the filing of the Registration
Statement or the consummation of the transactions contemplated hereby
and, except as disclosed in the Prospectus, no person has the right to
require registration under the 1933 Act of any shares of the Common
Stock of the Company or other securities of the Company.
35
ANNEX B
Ladies and Gentlemen:
We have acted as special tax counsel to Healthcare Realty Trust
Incorporated, a Maryland corporation (the "Company"), in connection with the
Registration Statement on Form S-3 for the proposed issuance [_____] shares of
common stock, par value $0.01 per share (the "Securities"). In connection with
the offering of the Securities, you have requested our opinions (A) that the
Company was and is organized in conformity with the requirements for
qualification as a real estate investment trust ("REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code") and
that its method of operation as described in the Prospectus Supplement permits
it to meet the requirements for qualification and taxation as a REIT, and (B)
that, for taxable years of the Company ended December 31, 1993, through December
31, 2003, the Company met the requirements for qualification and taxation as a
REIT set forth in Subchapter M of the Code.
In rendering our opinion, we have examined and relied upon the
following documents and other materials:
1. Schedules prepared and delivered by officials of the Company
setting forth:
(a) REIT taxable and gross income for the fiscal year ended
December 31, 2003, together with a schedule of actual dividends distributed and
projected dividends to be distributed in accordance with Code Section 858 and
compliance with the distribution requirements of Code Section 857(a); and
(b) Compliance with the applicable REIT ratios or tests for
the fiscal year ended December 31, 2003, including:
Income tests:
(1) 95% gross income test for the year; and
(2) 75% gross income test for the year.
Asset tests:
(1) 75% asset test at the end of each quarter;
(2) 25% asset test at the end of each quarter;
(3) 10% asset test at the end of each quarter; and
(4) 5% asset test at the end of each quarter.
2. Schedules prepared and delivered by officials of the Company
setting forth for all taxable years of the Company since and including the first
year with respect to which the Company elected REIT status, the information
described in paragraph 1 above and including, for taxable years prior to that
ended December 31, 1998, the 30% gross income test.
36
3. The Company's certificate, dated _________, 2003.
In addition, we have examined such additional records, documents,
certificates and other instruments and made such investigations of fact and law
as in our judgment are necessary or appropriate to enable us to render the
opinion expressed below.
In rendering our opinion, we have made the following assumptions:
1. Shares of the Company have been, since the completion of the
Company's initial public offering, and will continue to be, beneficially owned
by over 100 shareholders, as defined under Code Section 856(a)(5); five or fewer
shareholders have not owned, directly or indirectly under the rules of Code
Section 544, as modified by Code Section 856(h), at any time since the
completion of the initial public offering, over 50% in value of the outstanding
stock of the Company; and "Excess Shares" (defined in the Company's Second
Articles of Amendment and Restatement to be shares of a value exceeding 9.9% in
value of the outstanding shares of the Company) held or deemed held by any
person (pursuant to applicable rules of attribution) are deemed to have no value
or voting rights.
2. The Company has complied and will comply with any and all
procedural requirements for REIT status set forth in Code Sections 856 through
860 and the regulations thereunder, including the timely making of such
elections and the obtaining and disclosing of such information as is required on
the federal tax returns to be filed by the Company.
3. Additional properties acquired will constitute "real estate
assets" and any other investments made by the REIT will be made in a manner
which will satisfy the asset tests of Code Section 856(c).
4. The income from existing and additional leases entered into or
acquired and the income from other investments will not cause the Company to
fail to satisfy the income tests of Code Section 856(c).
5. The Company will operate in accordance with its past and
proposed method of operation as described in its filings with the Securities and
Exchange Commission under the Securities Act of 1933 and the Securities Exchange
Act of 1934, as amended.
6. The Company had no accumulated "C" corporation earnings and
profits at December 31, 2003.
7. All partnerships in which the Company may have an ownership
interest will own only "real estate assets" and cash reserves. All activities of
those partnerships will consist of activities permitted to be undertaken by a
REIT, and income of such partnerships, other than interest income on cash
reserves, shall be "rents from real property".
8. Each corporation in which the Company has acquired or acquires
an equity interest shall either be a "Qualified REIT Subsidiary" under Code
Section 856(i), a "Taxable
37
REIT Subsidiary" under Code Section 856(l) or a corporation in which the Company
will not own over ten percent of the outstanding voting securities, and the
securities owned of any such corporation that is not a Qualified REIT Subsidiary
or a Taxable REIT Subsidiary will not be greater in value than five percent (5%)
of the value of the total assets of the Company, and the aggregate value of the
securities of all such Taxable REIT Subsidiaries will not exceed twenty percent
(20%) of the value of the total assets of the Company.
On the basis of and in reliance on the foregoing, we wish to advise you
that:
(A) under current law, including relevant statutes, regulations and
judicial and administrative precedent (which law is subject to change on a
retroactive basis), in our opinion the Company was and is organized in
conformity with the requirements for qualification as a REIT under the Code and
that its method of operation permits it to meet the requirements for
qualification and taxation as a REIT.
(B) with respect to the taxable years of the Company ended December 31,
1993, through December 31, 2003, the Company met the requirements for
qualification and taxation as a REIT set forth in Subchapter M of the Code.
(C) we also hereby confirm the statements made under the captions
"Federal Income Tax and ERISA Considerations" in the Basic Prospectus, and under
Item 1 of the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, incorporated by reference therein, under the captions
"Federal Income Tax Information," "ERISA Considerations" and "Status of the
Company under ERISA".
Since actual qualification as a REIT is dependent upon future facts and
circumstances, it is possible that future events, operations, distributions or
other actions will cause the Company not to qualify or continue to qualify as a
REIT.
The foregoing opinions are limited to the federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any state,
locality or foreign country. We undertake no obligation to update the opinions
expressed herein after the date of this letter.
Sincerely,
38
ANNEX C
MATERIAL SUBSIDIARIES
1. ASMI/Birmingham Medical Building SPE, LLC
2. HR Acquisition of Alabama, Inc.
3. HR of California, Inc.
4. HR Acquisition I Corporation
5. HR Acquisition of Pennsylvania, Inc.
6. HR Acquisition of San Antonio, Ltd.
7. HR Acquisition of Virginia, L.P.
8. HR of Las Vegas, Ltd.
9. HR of Los Angeles, Ltd.
10. HR of Sarasota, Ltd.
11. HRT of Alabama, Inc.
12. HRT of Delaware, Inc.
13. HRT of Roanoke, Inc.
14. HRT of Tennessee, Inc.
15. Healthcare Realty Services Incorporated
16. Healthcare Realty Trust Incorporated
17. Pennsylvania HRT, Inc.
18. San Antonio SSP, Ltd.
19. HR Assets, LLC
20. HR Farmington, LLC
21. Healthcare Realty Services Incorporated
22. HR-Novi, LLC
23. HRT of Illinois, Inc.
39
ANNEX D
FORM OF LOCK-UP LETTER
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
c/x Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms
propose to enter into an Underwriting Agreement (the "Underwriting Agreement")
providing for the purchase by you and such other firms (together, the
"Underwriters") of shares of common stock, $0.01 par value per share (the
"Common Stock"), of Healthcare Realty Trust Incorporated and that the
Underwriters propose to reoffer such shares to the public (the "Offering").
In consideration of the execution of the Underwriting
Agreement by the Underwriters, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned
hereby agrees that during a period of 90 days from the date of the Underwriting
Agreement, the undersigned will not, without the prior written consent of Xxxx
Xxxxx Xxxx Xxxxxx, Incorporated, (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend or otherwise transfer or
dispose of, directly or indirectly, any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, (ii) enter
into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise or (iii) make any
demand for or exercise any right with respect to the registration of any shares
of Common Stock or any security convertible into or exchangeable for shares of
Common Stock, except that the undersigned may (x) exercise options or warrants
to purchase the Company's Common Stock, which options have been issued as of the
date hereof, (y) cause the conversion of a security outstanding on the date
hereof into Common Stock and (z) make such transfers or dispositions pursuant to
any employee stock purchase or other benefit plan in existence on the date
hereof or pursuant to the Company's Dividend Reinvestment Plan.
The undersigned agrees that the provisions of this agreement
will be binding also upon the successors, assigns, heirs and personal
representatives of the undersigned.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Common Stock if such transfer would constitute a violation or breach
of this agreement.
40
It is understood that if the Underwriting Agreement is not
executed, or if the Underwriting Agreement (other than any provisions thereof
that survive termination) shall terminate or be terminated prior to consummation
of the Offering, the undersigned will be automatically released, without further
action by you or the undersigned, from all obligations under this agreement.
Very truly yours,
________________________________
(Name)
________________________________
(Print Name)
41
ANNEX E
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx
X. X. Xxxxxx Xxxxxx
Xxxx X. Xxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx, Ph.X.
Xxxxxxx Xxxxxxx Xxxxxxxxx, M.D.
Xxxxx X. Xxxxxxx, Xx.
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx III
Xxxx Xxxx Xxxxxxxxx
Xxx X. Xxxxxxx
