Omega Healthcare Investors, Inc. 6,000,000 Shares Common Stock ($0.10 par value per Share) Underwriting Agreement
EXHIBIT 1.1
Omega Healthcare Investors,
Inc.
6,000,000
Shares
Common
Stock
($0.10
par value per Share)
Underwriting
Agreement
September
15, 2008
Underwriting
Agreement
September
15, 2008
UBS
Securities LLC
Xxxxxx,
Xxxxxxxx & Company, Incorporated
as Underwriters
c/o UBS
Securities LLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
Omega Healthcare Investors, Inc., a
corporation organized under the laws of Maryland (the “Company”), proposes
to issue and sell to the underwriters named in Schedule A annexed
hereto (the “Underwriters”), for
whom you are acting as representative, an aggregate of 6,000,000 shares (the
“Shares”) of
common stock, $0.10 par value per share (the “Common Stock”), of
the Company. The Shares are described in the Prospectus which is
referred to below.
The Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-150183) under the Act (the
“registration
statement”), including a prospectus, which registration statement
incorporates by reference documents which the Company has filed, or will file,
in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”). Such registration statement has become effective under
the Act.
Except where the context otherwise
requires, “Registration
Statement,” as used herein, means the registration statement, as amended
at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the respective Underwriters
(the “Effective
Time”), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any
information contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the extent such
information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be
part of the registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act.
Except where the context otherwise
requires, “Basic
Prospectus,” as used herein, means the basic prospectus in the form in
which it appeared in the Registration Statement as of September 15,
2008.
Except where the context otherwise
requires, “Prospectus
Supplement,” as used herein, means the final prospectus supplement,
relating to the Shares, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act), in the form
furnished by the Company to you for use by the Underwriters and by dealers in
connection with the offering of the Shares.
Except where the context otherwise
requires, “Prospectus,” as used
herein, means the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“Permitted Free Writing
Prospectuses,” as used herein, means the documents listed on Schedule B attached
hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act). The
Underwriters have not offered or sold and will not offer or sell, without the
Company’s written consent, any Shares by means of any “free writing prospectus”
(as defined in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the Act, other than
a Permitted Free Writing Prospectus.
“Covered Free Writing
Prospectuses,” as used herein, means (i) each “issuer free writing
prospectus” (as defined in Rule 433(h)(1) under the Act), if any, relating to
the Shares, which is not a Permitted Free Writing Prospectus and (ii) each
Permitted Free Writing Prospectus.
“Disclosure Package,”
as used herein, means the Basic Prospectus, together with any combination of one
or more of the Permitted Free Writing Prospectuses, if any.
Any reference herein to the
registration statement, the Registration Statement, the Basic Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
shall be deemed to refer to and include the documents, if any, incorporated by
reference, or deemed to be incorporated by reference, therein (the “Incorporated
Documents”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
on or after the initial effective date of the Registration Statement, or the
date of such Basic Prospectus, the Prospectus Supplement, the Prospectus or such
Permitted Free Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As used in this Agreement, “business day” shall
mean a day on which the New York Stock Exchange (the “NYSE”) is open for
trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Agreement. The term “or,” as used herein,
is not exclusive.
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The Company and the Underwriters agree
as follows:
1.
Sale and
Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the number of
Shares set forth opposite the name of such Underwriter in Schedule A attached
hereto, subject to adjustment in accordance with Section 8 hereof, at a purchase price of $16.20
per Share. The Company is advised by you that the Underwriters intend
(i) to make a public offering of their respective portions of the Shares as soon
after the effectiveness of this Agreement as in your judgment is advisable and
(ii) initially to offer the Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
2.
Payment and
Delivery. Payment of the purchase price for the Shares shall
be made to the Company by Federal Funds wire transfer against delivery of the
certificates for the Shares to you through the facilities of The Depository
Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on September 19, 2008 (unless
another time shall be agreed to by you and the Company). The time at
which such payment and delivery are to be made is hereinafter sometimes called
the “time of
purchase.” Electronic transfer of the Shares shall be made to
you at the time of purchase in such names and in such denominations as you shall
specify.
Deliveries of the documents described
in Section 6 hereof with respect to the purchase of
the Shares shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York
City time, on the date of the closing of the purchase of the
Shares.
3.
Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with the Underwriters that:
(a) the
Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale
of Shares pursuant to Rule 462(b) under the Act, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New York
City time, on the date of determination of the public offering price for the
Shares; no stop order of the Commission preventing or suspending the use of the
Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus, or the effectiveness of the Registration Statement, has
been issued, and no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are contemplated by the Commission;
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(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares, will comply, in all material respects, with the requirements of the Act;
the conditions to the use of Form S-3 in connection with the offering and sale
of the Shares as contemplated hereby have been satisfied; the Registration
Statement constitutes an “automatic shelf registration statement” (as defined in
Rule 405 under the Act); the Company has not received, from the Commission, a
notice, pursuant to Rule 401(g)(2), of objection to the use of the automatic
shelf registration statement form; as of the determination date applicable to
the Registration Statement (and any amendment thereof) and the offering
contemplated hereby, and as of each time, if any, an “offer by or on behalf of”
(within the meaning of Rule 163 under the Act) the Company was made prior to the
initial filing of the Registration Statement, the Company is and was a
“well-known seasoned issuer” as defined in Rule 405 under the Act; the
Registration Statement meets, and the offering and sale of the Shares as
contemplated hereby complies with, the requirements of Rule 415 under the Act
(including, without limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of the Effective Time, 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; the Basic Prospectus
complied or will comply, as of its date and the date it was or will be filed
with the Commission, complies as of the date hereof (if filed with the
Commission on or prior to the date hereof) and, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares, will comply, in all material respects, with the requirements of the Act;
at no time during the period that begins on the earlier of the date of the Basic
Prospectus and the date the Basic Prospectus was filed with the Commission and
ends at the time of purchase did or will the Basic Prospectus, as then amended
or supplemented, include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and at no time
during such period did or will the Basic Prospectus, as then amended or
supplemented, together with any combination of one or more of the then issued
Permitted Free Writing Prospectuses, if any, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; each of the Prospectus Supplement and the Prospectus will
comply, as of the date that it is filed with the Commission, the date of the
Prospectus Supplement, the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, in all material
respects, with the requirements of the Act (in the case of the Prospectus,
including, without limitation, Section 10(a) of the Act); at no time during the
period that begins on the earlier of the date of the Prospectus Supplement and
the date the Prospectus Supplement is filed with the Commission and ends at the
later of the time of purchase, the latest additional time of purchase, if any,
and the end of the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares did or will any
Prospectus Supplement or the Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during the
period that begins on the date of such Permitted Free Writing Prospectus and
ends at the time of purchase did or will any Permitted Free Writing Prospectus
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration
Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus in reliance upon and in conformity with information concerning an
Underwriter and furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in the Registration Statement, the Basic
Prospectus, the Prospectus or such Permitted Free Writing Prospectus; each
Incorporated Document, at the time such document was filed, or will be filed, or
if amended or supplemented, as and at the time so amended or supplemented, with
the Commission or at the time such document became or becomes effective, as
applicable, complied or will comply, in all material respects, with the
requirements of the Exchange Act and did not or will not, as applicable, include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
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(c) prior
to the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Shares, in each case other than the Basic
Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has
not, directly or indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433
under the Act; assuming that such Permitted Free Writing Prospectus is so sent
or given after the Registration Statement was filed with the Commission (and
after such Permitted Free Writing Prospectus was, if required pursuant to Rule
433(d) under the Act, filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy the
provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c)
and (d) of Rule 164); the conditions set forth in one or more of subclauses (i)
through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the
registration statement relating to the offering of the Shares contemplated
hereby, as initially filed with the Commission, includes a prospectus that,
other than by reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; neither the Company nor the Underwriters
are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act,
from using, in connection with the offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and
433 under the Act; the Company is not an “ineligible issuer” (as defined in Rule
405 under the Act) as of the eligibility determination date for purposes of
Rules 164 and 433 under the Act with respect to the offering of the Shares
contemplated by the Registration Statement, without taking into account any
determination by the Commission pursuant to Rule 405 under the Act that it is
not necessary under the circumstances that the Company be considered an
“ineligible issuer”; the parties hereto agree and understand that the content of
any and all “road shows” (as defined in Rule 433 under the Act) related to the
offering of the Shares contemplated hereby is solely the property of the
Company;
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(d) in
accordance with Conduct Rule 2710(b)(7)(C)(i) of the Financial Industry
Regulatory Authority, Inc. (“FINRA”), the Shares
have been registered with the Commission on Form S-3 under the Act pursuant to
the standards for such Form S-3 in effect prior to October 21,
1992;
(e) as
of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement and
the Prospectus entitled “Capitalization” and “Description of capital stock” (and
any similar sections or information, if any, contained in any Permitted Free
Writing Prospectus), and, as of the time of purchase and any additional time of
purchase, as the case may be, the Company shall have an authorized and
outstanding capitalization as set forth in the sections of the Registration
Statement and the Prospectus entitled “Capitalization” and “Description of
capital stock” (and any similar sections or information, if any, contained in
any Permitted Free Writing Prospectus) (subject, in each case, to the issuance
of shares of Common Stock upon exercise of stock options and warrants disclosed
as outstanding in the Registration Statement (excluding the exhibits thereto),
the Basic Prospectus and the Prospectus and the grant of options under existing
stock option plans described in the Registration Statement (excluding the
exhibits thereto), the Basic Prospectus and the Prospectus); all of the issued
and outstanding shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable, have been issued in
compliance with all federal and state securities laws and were not issued in
violation of any preemptive right, resale right, right of first refusal or
similar right; no further approval or authority of the stockholders or the Board
of Directors of the Company are required for the issuance and sale of the
Shares; the Shares are duly listed, and admitted and authorized for trading,
subject to official notice of issuance, on the NYSE;
(f)
the Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Maryland, with full corporate power
and authority to acquire, own, lease and operate its properties, and to lease
the same to others, and to conduct its business as described in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, to execute and deliver this Agreement and to issue, sell
and deliver the Shares as contemplated herein; and the Company is in compliance
in all respects with the laws, orders, rules, regulations and directives issued
or administered by such jurisdiction, except where the failure to be in
compliance would not, individually or in the aggregate, either (i) have a
material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole or (ii) prevent consummation of the
transactions contemplated hereby (the occurrence of such effect or such
prevention described in the foregoing clauses (i) and (ii) being herein referred
to as a “Material
Adverse Effect”);
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(g) the
Company is duly qualified to do business as a foreign entity and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect;
(h) the
Company has no subsidiaries (as defined under the Act) other than those listed
in Schedule C
attached hereto (collectively, the “Subsidiaries”); the
Company owns all of the issued and outstanding capital stock of each of the
Subsidiaries; other than the capital stock of the Subsidiaries, the Company does
not own, directly or indirectly, any shares of stock or any other equity
interests or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity;
complete and correct copies of the articles of incorporation and the bylaws of
the Company and all amendments thereto have been delivered to you, and, except
as set forth in the exhibits to the Registration Statement, no changes therein
or to the articles of incorporation and the bylaws of the Subsidiaries will be
made on or after the date hereof or on or before the time of purchase or, if
later, any additional time of purchase; each Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus; each Subsidiary
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect; each Subsidiary is in compliance
in all respects with the laws, orders, rules, regulations and directives issued
or administered by such jurisdictions, except where the failure to be in
compliance would not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company subject to no security interest,
other material encumbrance or adverse claims other than security interests, as
disclosed in the Prospectus, granted under the Company’s existing senior credit
facility; no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into shares of
capital stock or ownership interests in the Subsidiaries are outstanding; and
the Company has no “significant subsidiary,” as that term is defined in Rule
1-02(w) of Regulation S-X under the Act, other than those listed in Exhibit 21
to the Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2007;
(i) the
Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights;
(j) the
capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained or incorporated by
reference in the Registration Statement, the Basic Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any; and the certificates for
the Shares are in due and proper form and the holders of the Shares will not be
subject to personal liability by reason of being such holders;
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(k) this
Agreement has been duly authorized, executed and delivered by the
Company;
(l) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time or
both would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) its (i) respective charter or bylaws, or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or
affected, or (iii) any federal, state, local or foreign law, regulation or rule,
including, without limitation, the rules and regulations of the NYSE, or any
decree, judgment or order applicable to the Company or any of the Subsidiaries
or any of their respective properties, except in the case of clauses (ii) and
(iii) above, such breaches, violations or defaults as would not individually, or
in the aggregate, have a Material Adverse Effect; and the execution, delivery
and performance of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated hereby (A) will neither conflict
with, result in any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would result in
any breach or violation of or constitute a default under or give the holder of
any indebtedness (or a person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (1) the charter or bylaws of the Company or any of the
Subsidiaries, or (2) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective properties may be
bound or affected, or (3) any federal, state or local law, regulation or rule,
including the rules and regulations of the NYSE, or any decree, judgment or
order applicable to the Company or any of the Subsidiaries, except in the case
of clauses (2) above, such breaches, violations or defaults as would not
individually, or in the aggregate, have a Material Adverse Effect, nor (B)
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any of the properties (real and personal (including, without limitation,
mortgage loans and unsecured loans)) described in the Registration Statement or
Prospectus as being owned or leased by the Company or any of the Subsidiaries
(the “Properties”);
(m) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with the NYSE, or approval of the stockholders of the
Company, is required in connection with the issuance and sale of the Shares or
the consummation by the Company of the transactions contemplated hereby other
than registration of the Shares under the Act, which has been effected, the
listing of the Shares on the NYSE, which has been effected and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or under the Conduct
Rules of the FINRA;
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(n) except
as expressly set forth in the Registration Statement (excluding the exhibits
thereto), the Basic Prospectus and the Prospectus (i) no person has the right,
contractual or otherwise, to cause the Company to issue or sell to it any shares
of Common Stock or shares of any other capital stock or other equity interests
of the Company, (ii) no person has any preemptive rights, resale rights, rights
of first refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock of or other equity interests in the Company
and (iii) no person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Shares,
whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise; no person has
the right, contractual or otherwise, to cause the Company to register under the
Act any shares of Common Stock or shares of any other capital stock of or other
equity interests in the Company, or to include any such shares or interests in
the Registration Statement or the offering contemplated thereby, whether as a
result of the filing or effectiveness of the Registration Statement or the sale
of the Shares as contemplated thereby or otherwise;
(o) each
of the Company and the Subsidiaries (and, to the Company’s knowledge, each
operator, lessee or sublessee of any Property or portion thereof) (i) has all
necessary licenses, authorizations, consents and approvals and (ii) has made all
necessary filings required under any federal, state, local or foreign law,
regulation or rule, and (iii) has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order to acquire
and own, lease or sublease, lease to others and conduct its respective business
as described in the Registration Statement or Prospectus, except in the case of
clauses (i), (ii) and (iii) above, where the failure to have such items, make
such filings or obtain such items would not individually, or in the aggregate,
have a Material Adverse Effect; neither the Company nor any of the Subsidiaries
(nor, to the Company’s knowledge, any such operator, lessee or sublessee) is in
violation of, or in default under, or has received notice of any proceedings
relating to revocation or modification of, any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation or
rule or any decree, order or judgment applicable to the Company or any of the
Subsidiaries, except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material Adverse
Effect;
(p) all
legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, leases 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 have been so described or filed as required;
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(q) there
are no actions, suits, claims, investigations or proceedings pending or, to the
Company’s knowledge, threatened or contemplated to which the Company or any of
the Subsidiaries or any of their respective directors or officers (or, to the
Company’s knowledge, any person from whom the Company or any Subsidiary acquired
any of the Properties (each, a “seller”), or any
lessee, sublessee or operator of any Property or any portion thereof) is or
would be a party, or of which any of the respective properties or assets of the
Company and the Subsidiaries, or any Property, is or would be subject at law or
in equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, except any such action,
suit, claim, investigation or proceeding which would not result in a judgment,
decree or order having, individually or in the aggregate, a Material Adverse
Effect;
(r) Ernst
& Young LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is included in the Registration Statement, the
Basic Prospectus and the Prospectus, are independent registered public
accountants as required by the Act and by the rules of the Public Company
Accounting Oversight Board;
(s) the
financial statements included or incorporated by reference in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, together with the related notes and schedules, present
fairly the consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and the consolidated results of operations, cash flows
and changes in stockholders’ equity of the Company for the periods specified and
have been prepared in compliance with the requirements of the Act and Exchange
Act and in conformity with U.S. generally accepted accounting principles applied
on a consistent basis during the periods involved; all pro forma financial
statements or data included or incorporated by reference in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, comply with the requirements of the Act and the Exchange
Act, and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein are
appropriate to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements and data; the other
financial and statistical data contained or incorporated by reference in the
Registration Statement, the Basic Prospectus, the Prospectus and the Permitted
Free Writing Prospectuses, if any, are accurately presented and prepared in all
material respects on a basis consistent with the financial statements and books
and records of the Company; there are no financial statements (historical or pro
forma) that are required to be included or incorporated by reference in the
Registration Statement, the Basic Prospectus or the Prospectus that are not
included or incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not described in the
Registration Statement (excluding the exhibits thereto), the Basic Prospectus
and the Prospectus; and all disclosures contained or incorporated by reference
in the Registration Statement, the Basic Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable;
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(t)
subsequent to the respective dates as of which information is given in the
Prospectus and the Permitted Free Writing Prospectuses, if any, in each case
excluding any amendments or supplements to the foregoing made after the
execution of this Agreement, there has not been (i) any material adverse change,
or any development which could have a reasonable possibility of giving rise to a
prospective material adverse change, in the business, properties, management,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole, (ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation, direct or contingent
(including any off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries taken as a
whole, (iv) any change in the capital stock (except as the result of the
exercise of rights by directors and employees under the Company’s stock
incentive plans described in the Prospectus) or outstanding indebtedness of the
Company or any Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any
Subsidiary;
(u) the
Company has obtained for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”),
in the form set forth as Exhibit A hereto, of
each of its officers and directors;
(v) neither
the Company nor any Subsidiary is and, after giving effect to the offering and
sale of the Shares, neither of them will be an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company
Act”);
(w) the
Company, and each of the Subsidiaries, has insurable title, and, in the case of
real property, in fee simple, to the Properties, free and clear of all liens,
claims, mortgages, deeds of trust, restrictions, security interests and other
encumbrances or defects (“Property
Encumbrances”), except for (x) the leasehold interests of lessees in the
Properties of the Company and the Subsidiaries held under lease (the “Leases”) and (y) any
other Property Encumbrances that would not, individually or in the aggregate,
have a Material Adverse Effect; and all Property Encumbrances on or affecting
the Properties which are required to be disclosed in the Registration Statement,
the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are disclosed therein as required;
(x)
each of the Leases pertaining to the Properties has been duly authorized by the
Company or a Subsidiary, as applicable, and is a valid, subsisting and
enforceable agreement of the Company or such Subsidiary, as applicable, and, to
the Company’s knowledge, each other party thereto, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors’ rights
generally or general equitable principles;
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(y) no
person has an option or right of first refusal to purchase all or any material
portion of the Property owned by the Company or any interest therein, and to the
Company’s knowledge no such right exists with respect to any Property that the
Company leases (as lessee), except for such options or rights of first refusal
which, if exercised, will not individually or in the aggregate have a Material
Adverse Effect;
(z)
to the Company’s knowledge, except as disclosed in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, no lessee of any portion of any of the Properties is in
default under its respective lease, and there is no event which, with notice,
lapse of time or both, would constitute a default under any such lease, except
such defaults that would not, individually or in the aggregate, have a Material
Adverse Effect;
(aa)
to the Company’s knowledge, except as disclosed in the Registration Statement
and Prospectus, no borrower of a Company mortgage loan is in default under its
respective mortgage loan, and there is no event which, with notice, lapse of
time or both, would constitute a default under any such mortgage loan, except
such defaults that would not, individually or in the aggregate, have a Material
Adverse Effect;
(bb)
the Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information described in
the Registration Statement, the Basic Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses, if any, as being owned or licensed by them
or which are necessary for the conduct of their respective businesses, except
where the failure to own, license or have such rights would not, individually or
in the aggregate, have a Material Adverse Effect;
(cc)
neither the Company nor any of the Subsidiaries is engaged in any unfair labor
practice, except as would not, individually or in the aggregate, have a Material
Adverse Effect; there has been no violation of any federal, state or local law
relating to discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee Retirement Income
Security Act of 1974 (“ERISA”) or the rules
and regulations promulgated thereunder concerning the employees of the Company
or any of the Subsidiaries, except as would not, individually or in the
aggregate, have a Material Adverse Effect; there is no strike, labor dispute,
slowdown or work stoppage with the employees of the Company or any of the
Subsidiaries that is pending or, to the knowledge of the Company,
threatened;
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(dd) the
Company and the Subsidiaries and their respective properties, assets and
operations (and, to the Company’s knowledge, each operator, lessee or sublessee
of any Property or portion thereof) are in compliance with, and the Company and
each of the Subsidiaries hold all permits, authorizations and approvals required
under, Environmental Laws (as defined below), except to the extent that failure
to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there are no
past, present or, to the Company’s knowledge, reasonably anticipated future
events, conditions, circumstances, activities, practices, actions, omissions or
plans that could reasonably be expected to give rise to any material costs or
liabilities to the Company or any Subsidiary under, or to interfere with or
prevent compliance by the Company or any Subsidiary with, Environmental Laws,
except as would not, individually or in the aggregate, have a Material Adverse
Effect; except as would not, individually or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of the Subsidiaries, nor, to the
Company’s knowledge, any seller, lessee, sublessee or operator of any Property
or portion thereof or any previous owner thereof, (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or threatened action, suit or proceeding, (iv) is bound
by any judgment, decree or order or (v) has entered into any agreement, in each
case relating to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of any
Hazardous Materials (as defined below); and neither the Company nor any of the
Subsidiaries, nor, to the Company’s knowledge, any seller, lessee, sublessee or
operator of any Property or portion thereof or any previous owner thereof, has
received from any governmental authority notice of any violation, concerning the
Properties, of any municipal, state or federal law, rule or regulation or of any
Environmental Law, except for such violations as have heretofore been cured and
except for such violations as would not, individually or in the aggregate, have
a Material Adverse Effect (as used herein, “Environmental Law”
means any federal, state or local law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license, authorization or other
binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Materials”
means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give rise
to liability under any Environmental Law);
(ee) the
Company and the Subsidiaries have (A) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all applicable authorities, all self-regulatory
authorities and all courts and other tribunals (each, an “Authorization”)
necessary to engage in the business conducted by it in the manner described in
the Prospectus, except as would not, individually or in the aggregate, have a
Material Adverse Effect and (B) no reason to believe that any governmental body
or agency, domestic or foreign, is considering limiting, suspending or revoking
any such Authorization, except where any such limitations, suspensions or
revocations would not, individually or in the aggregate, have a Material Adverse
Effect; all such Authorizations are valid and in full force and effect and the
Company and the Subsidiaries are in compliance with the terms and conditions of
all such Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such Authorizations, except for
any invalidity, failure to be in full force and effect or noncompliance with any
Authorization that would not, individually or in the aggregate, have a Material
Adverse Effect;
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(ff) neither
the Company nor any of the Subsidiaries, nor, to the Company’s knowledge, any
seller, lessee, sublessee or operator of any Property or portion thereof, has
received from any governmental authority any written notice of any condemnation
of, or zoning change affecting, the Properties or any portion thereof, and the
Company does not know of any such condemnation or zoning change which is
threatened, except for such condemnations or zoning changes that, if
consummated, would not, individually or in the aggregate, have a Material
Adverse Effect; and each of the Properties, and the current and intended use and
occupancy thereof, complies with all applicable zoning laws, ordinances and
regulations, except where such failure does and will not, individually or in the
aggregate, have a Material Adverse Effect;
(gg) all
tax returns required to be filed by the Company or any of the Subsidiaries have
been timely filed, and all taxes and other assessments of a similar nature
(whether imposed directly or through withholding) including any interest,
additions to tax or penalties applicable thereto due or claimed to be due from
such entities have been timely paid, other than those being contested in good
faith and for which adequate reserves have been provided; and to the Company’s
knowledge, there is no tax deficiency which has been asserted against the
Company or any Subsidiary, except any tax deficiency which would not,
individually or in the aggregate, have a Material Adverse Effect;
(hh) each
of the Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amount as the
Company reasonably deems to be adequate and as are customary in the business in
which they are engaged, except as described in the Prospectus; except as would
not, individually, or in the aggregate, have a Material Adverse Effect, all
policies of insurance insuring the Company and the Subsidiaries or any of their
businesses, assets, employees, officers, directors and trustees are in full
force and effect, and the Company and the Subsidiaries are in compliance with
the terms of such policies in all material respects. Except as would not,
individually or in the aggregate, have a Material Adverse Effect, there are no
claims by the Company or any of the Subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause;
(ii) neither
the Company nor any of the Subsidiaries has sustained since the date of the last
audited financial statements included in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, any loss or
interference with its respective 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, except for such loss or
interference as would not individually, or in the aggregate, have a Material
Adverse Effect;
(jj) neither
the Company nor any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the leases, contracts or
agreements referred to or described in the Basic Prospectus, the Prospectus or
any Permitted Free Writing Prospectus, or referred to or described in, or filed
as an exhibit to, the Registration Statement or any Incorporated Document, and
no such termination or non-renewal has been threatened by the Company or any
Subsidiary or, to the Company’s knowledge after due inquiry, any other party to
any such contract or agreement, except as described in the Prospectus and for
such termination or non-renewal as would not individually, or in the aggregate,
have a Material Adverse Effect;
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(kk) the
Company and each of the Subsidiaries on a consolidated basis, maintains a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(ll) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company’s independent registered public accountants and the Audit Committee of
the Board of Directors of the Company have been advised of: (i) all significant
deficiencies, if any, in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize and
report financial data; and (ii) all fraud, if any, whether or not material, that
involves management or other employees who have a role in the Company’s internal
controls; all “significant deficiencies” and “material weaknesses” (as such
terms are defined in Rule 1-02(a)(4) of Regulation S-X under the Act) of the
Company, if any, in internal controls have been identified to the Company’s
independent registered public accountants and any material weaknesses have been
disclosed in the Registration Statement (excluding the exhibits thereto), the
Basic Prospectus and the Prospectus; since the date of the most recent
evaluation of such disclosure controls and procedures and internal controls,
there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses; the
principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all certifications
required by the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any
related rules and regulations promulgated by the Commission, and the statements
contained in each such certification are complete and correct; the Company, the
Subsidiaries and the Company’s directors and officers are each in compliance in
all material respects with all applicable effective provisions of the
Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission and the NYSE
promulgated thereunder;
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(mm) the
Company has provided the Underwriters true, correct and complete copies of all
documentation pertaining to any extension of credit in the form of a personal
loan made, directly or indirectly, by the Company or any Subsidiary to any
director or executive officer of the Company, or to any family member or
affiliate of any director or executive officer of the Company; and on or after
July 30, 2002, the Company has not, directly or indirectly, including through
any Subsidiary: (i) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director or
executive officer of the Company, or to or for any family member or affiliate of
any director or executive officer of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any personal loan to
any director or executive officer of the Company, or any family member or
affiliate of any director or executive officer, which loan was outstanding on
July 30, 2002;
(nn) all
statistical or market-related data included or incorporated by reference in the
Registration Statement, the Basic Prospectus, the Prospectus and the Permitted
Free Writing Prospectuses, if any, are based on or derived from sources that the
Company believes to be reliable and accurate in all material respects, and the
Company has obtained the written consent to the use of such data from such
sources to the extent required;
(oo) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “Foreign Corrupt Practices
Act”); and the Company, the Subsidiaries and, to the knowledge of the
Company, its affiliates have instituted and maintain policies and procedures
designed to ensure continued compliance therewith;
(pp) the
operations of the Company and the Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering
Laws”); and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator or non-governmental
authority involving the Company or any of the Subsidiaries with respect to the
Money Laundering Laws is pending or, to the Company’s knowledge,
threatened;
(qq) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
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 of the
Shares contemplated hereby, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other person or entity for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC;
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(rr) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration
Statement;
(ss) except
as set forth in the Registration Statement under the heading “Certain federal
income tax considerations,” from and including the Company’s taxable year ended
1992, the Company has continuously met, currently meets, and as of the time of
purchase or additional time of purchase, as the case may be, will meet, the
requirements for, and its proposed methods of operations as described in the
Registration Statement or Prospectus will permit the Company to continue to meet
the requirements for, qualification and taxation as a real estate investment
trust (“REIT”)
under the Internal Revenue Code of 1986 (the “Code”); and all
statements in the Prospectus or Registration Statement regarding the Company’s
qualification as a REIT are true, complete and correct in all material
respects;
(tt) neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares; and
(uu) to
the Company’s knowledge, there are no affiliations or associations between (i)
any member of the FINRA and (ii) the Company or any of the Company’s officers,
directors or 5% or greater securityholders, except as set forth in the
Registration Statement (excluding the exhibits thereto), the Basic Prospectus
and the Prospectus.
Each certificate signed by an officer
of the Company and delivered to any Underwriter or counsel for the Underwriters
pursuant to this Agreement at the time of purchase or the additional time of
purchase shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters covered by such certificate. The Company
acknowledges that the Underwriters and, for purposes of the opinions to be
delivered to the Underwriters pursuant to Section 6
hereof, counsel to the Company and counsel to the Underwriters will rely upon
the accuracy and truth of the foregoing representations, and the Company hereby
consents to such reliance.
4.
Certain
Covenants. The Company hereby agrees:
(a) to
furnish such information as may be reasonably required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states or other jurisdictions as you may designate and to
maintain such qualifications in effect so long as you may reasonably request for
the distribution of the Shares; provided, however, that the
Company shall not be required to qualify as a foreign entity or to consent to
the service of process under the laws of any such jurisdiction (except service
of process with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
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(b) to
make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to
furnish to the Underwriters, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated by the
Act; in case any Underwriter is required to deliver (whether physically or
through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Shares, a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act, or after the time a post-effective
amendment to the Registration Statement is required pursuant to Item 512(a) of
Regulation S-K under the Act, the Company will prepare, at its expense, promptly
upon request such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as
the case may be;
(c) if,
at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement to be
filed with the Commission and become effective before the Shares may be sold,
the Company will use its best efforts to cause such post-effective amendment or
such Registration Statement to be filed and become effective, and will pay any
applicable fees in accordance with the Act, as soon as possible; and the Company
will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement
has become effective, and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act
(which the Company agrees to file in a timely manner in accordance with such
Rules);
(d) if,
at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, the Registration
Statement shall cease to comply with the requirements of the Act with respect to
eligibility for the use of the form on which the Registration Statement was
filed with the Commission or the Registration Statement shall cease to be an
“automatic shelf registration statement” (as defined in Rule 405 under the Act)
or the Company shall have received, from the Commission, a notice, pursuant to
Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission, to (i) promptly notify you, (ii)
promptly file with the Commission a new registration statement under the Act,
relating to the Shares, or a post-effective amendment to the Registration
Statement, which new registration statement or post-effective amendment shall
comply with the requirements of the Act and shall be in a form satisfactory to
you, (iii) use its best efforts to cause such new registration statement or
post-effective amendment to become effective under the Act as soon as
practicable, (iv) promptly notify you of such effectiveness and (v) take all
other action necessary or appropriate to permit the public offering and sale of
the Shares to continue as contemplated in the Prospectus; all references herein
to the Registration Statement shall be deemed to include each such new
registration statement or post-effective amendment, if any;
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(e) if
the third anniversary of the initial effective date of the Registration
Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at
any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, to file with the
Commission, prior to such third anniversary, a new registration statement under
the Act relating to the Shares, which new registration statement shall comply
with the requirements of the Act (including, without limitation, Rule 415(a)(6)
under the Act) and shall be in a form satisfactory to you; such new registration
statement shall constitute an “automatic shelf registration statement” (as
defined in Rule 405 under the Act); provided, however, that if the
Company is not then eligible to file an “automatic shelf registration statement”
(as defined in Rule 405 under the Act), then such new registration statement
need not constitute an “automatic shelf registration statement” (as defined in
Rule 405 under the Act), but the Company shall use its best efforts to cause
such new registration statement to become effective under the Act as soon as
practicable, but in any event within 180 days after such third anniversary and
promptly notify you of such effectiveness; the Company shall take all other
action necessary or appropriate to permit the public offering and sale of the
Shares to continue as contemplated in the Prospectus; all references herein to
the Registration Statement shall be deemed to include each such new registration
statement, if any;
(f) on
a confidential basis, to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus or for additional information with respect thereto, or
of notice of institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal
of such order as soon as possible; on a confidential basis, to advise you
promptly of any proposal to amend or supplement the Registration Statement, the
Basic Prospectus or the Prospectus, and to provide you and the Underwriters’
counsel copies of any such documents for review and comment a reasonable amount
of time prior to any proposed filing and to file no such amendment or supplement
to which you shall object in writing;
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(g) subject
to Section 4(f)
hereof, to file promptly all reports and documents and any preliminary or
definitive proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act for so long as a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with
any sale of Shares; and to provide you, on a confidential basis, for your review
and comment, with a copy of such reports and statements and other documents to
be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period a reasonable amount of time prior to any proposed filing, and
to file no such report, statement or document to which you shall have objected
in writing; and to promptly notify you of such filing;
(h) to
pay the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456(b)(1)(i) under the
Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in
compliance with Rule 456(b) and Rule 457(r) under the Act;
(i)
to advise the Underwriters promptly of the happening of any event within the
period during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, which event could require the
making of any change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend
or supplement the Prospectus to cause the Prospectus to comply with the
requirements of the Act, and, in each case, during such time, subject to Section
4(f)
hereof, to prepare and furnish, at the Company’s expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be necessary
to reflect any such change or to effect such compliance;
(j)
to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section
11(a) of the Act) covering a period of twelve months beginning after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act) as soon as is reasonably practicable after the termination of such
twelve-month period but in any case not later than March 1, 2010;
(k) to
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet and statements of
operations, stockholders’ equity and cash flow of the Company and the
Subsidiaries for such fiscal year, accompanied by a copy of the certificate or
report thereon of nationally recognized independent certified public accountants
duly registered with the Public Company Oversight Accounting
Board);
(l)
to furnish to you one copy for each Underwriter of the Registration Statement,
as initially filed with the Commission, and of all amendments thereto (including
all exhibits thereto and documents incorporated by reference therein) and
sufficient copies of the foregoing (other than exhibits) for distribution of a
copy to Underwriters’ counsel;
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(m) to
furnish to you promptly for a period of three years from the date of this
Agreement (i) copies of any reports, proxy statements, or other communications
which the Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly,
transition and current reports filed with the Commission on Forms 10-K, 10-Q or
8-K, or such other similar forms as may be designated by the Commission, (iii)
copies of documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed and (iv) such other
information as you may reasonably request regarding the Company or the
Subsidiaries; provided, however, it is understood and agreed that the Company
shall have no obligation to furnish any of the items under this section (k) to
the extent such items are available via the XXXXX database;
(n) to
furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business
days prior thereto, a copy of the latest available unaudited interim and monthly
consolidated financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company’s independent registered public accountants,
as stated in their letter to be furnished pursuant to Section 6(b)
hereof;
(o) to
apply the net proceeds from the sale of the Shares in the manner set forth under
the caption “Use of proceeds” in the Prospectus Supplement;
(p) to
pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing of copies of
each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Shares
including any stock or transfer taxes and stamp or similar duties payable upon
the sale, issuance or delivery of the Shares to the Underwriters, (iii) the
producing, word processing and/or printing of this Agreement, any Agreement
Among Underwriters, any dealer agreements, any Powers of Attorney and any
closing documents (including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers (including costs of mailing and shipment),
(iv) the qualification of the Shares for offering and sale under state or
foreign laws and the determination of their eligibility for investment under
state or foreign law (including the reasonable legal fees and filing fees and
other disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, if any, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on the NYSE and
any registration thereof under the Exchange Act, (vi) any filing for review of
the public offering of the Shares by FINRA, including the legal fees and filing
fees and other disbursements of counsel to the Underwriters relating to FINRA
matters, (vii) the fees and disbursements of any transfer agent or registrar for
the Shares and (viii) the costs and expenses of the Company, if any, relating to
presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Shares to prospective investors and the Underwriters’
sales forces, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show;
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(q) to
comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(r)
beginning on the date hereof and ending on, and including, the date that is
sixty (60) days after the date of the Prospectus Supplement (the “Lock-Up Period”),
without the prior written consent of UBS Securities LLC (“UBS”), not to (i)
issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge,
grant any option to purchase or otherwise dispose of or agree to dispose of,
directly or indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, with respect to, any Common Stock or any other
securities of the Company that are substantially similar to Common Stock, or any
securities convertible into or exchangeable or exercisable for, or any warrants
or other rights to purchase, the foregoing, (ii) file or cause to become
effective a registration statement under the Act relating to the offer and sale
of any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (iii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iv) publicly announce an
intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the offer and sale of the
Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the Registration
Statement (excluding the exhibits thereto), the Basic Prospectus and the
Prospectus, (C) the issuance of the issuance of shares pursuant to the terms and
conditions of the Company’s dividend reinvestment and stock purchase plan
described in the Registration Statement (excluding the exhibits thereto), the
Basic Prospectus and the Prospectus, and (D) the issuance of employee stock
options not exercisable during the Lock-Up Period pursuant to stock option plans
described in the Registration Statement (excluding the exhibits thereto), the
Basic Prospectus and the Prospectus or the issuance of restricted stock, stock
awards or other equity incentives pursuant to the Company’s stock incentive
plans described in the Registration Statement (excluding the exhibits thereto),
the Basic Prospectus and the Prospectus provided that the recipients of such
restricted stock, stock awards or other equity incentives are restricted from
selling such restricted stock, stock awards or other equity incentives during
the Lock-Up Period; provided, however, that if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section 4(r)
shall continue to apply until the expiration of the date that is fifteen (15)
calendar days plus three (3) business days after the date on which the issuance
of the earnings release or the material news or material event occurs; provided, further, that the
immediately preceding proviso shall not apply if (i) the safe harbor provided by
Rule 139 under the Act is available in the manner contemplated by Conduct Rule
2711(f)(4) of FINRA; and (ii) within the 3 business days preceding the 15th
calendar day before the last day of the Lock-Up Period, the Company delivers (in
accordance with Section 11)
to the Underwriters a certificate, signed by the Chief Financial Officer or
Chief Executive Officer of the Company, certifying on behalf of the Company that
the Company’s shares of Common Stock are “actively traded securities,” within
the meaning of Conduct Rule 2711(f)(4) of FINRA;
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(s) prior
to the time of purchase or any additional time of purchase, as the case may be,
to issue no press release or other communication directly or indirectly and hold
no press conferences with respect to the Company or any Subsidiary, the
financial condition, results of operations, business, properties, assets, or
liabilities of the Company or any Subsidiary, or the offering of the Shares,
without your prior consent, which shall not be unreasonably
withheld;
(t)
to use its best efforts to continue to qualify as a REIT under Sections 856
through 860 of the Code
(u) to
use its best efforts to cause the Common Stock, including the Shares, to be
listed on the NYSE and to maintain such listing;
(v) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock;
(w) not,
at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act), or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than the
Prospectus; and
(x)
not to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might
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
the Shares.
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5.
Reimbursement of the
Underwriters’ Expenses. If, after the execution and delivery
of this Agreement, the Shares are not delivered for any reason other than the
default by the Underwriters in their obligations hereunder, the Company shall,
in addition to paying the amounts described in Section 4(p)
hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
6.
Conditions of the
Underwriters’ Obligations. The obligations of the Underwriters
hereunder are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof, at the time of purchase and, if
applicable, at the additional time of purchase, the performance by the Company
of its obligations hereunder and to the following additional conditions
precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion or opinions of Xxxxxx Xxxxxxxxx LLP,
counsel for the Company, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, and in form and
substance satisfactory to the Underwriters, in the form agreed to by Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, prior to the
execution of this Agreement.
(b) The
Underwriters shall have received from Ernst & Young LLP letters dated,
respectively, the date of this Agreement, the date of the Prospectus Supplement,
the time of purchase and, if applicable, the additional time of purchase, and
addressed to the Underwriters in the forms satisfactory to UBS, which letters
shall cover, without limitation, the various financial disclosures contained in
the Registration Statement, the Basic Prospectus, the Prospectus and the
Permitted Free Writing Prospectuses, if any.
(c) The
Underwriters shall have received at the time of purchase and, if applicable, at
the additional time of purchase, the favorable opinion (which may provide for
reliance, as to Maryland law, on the opinion delivered under section 6(a) hereof) of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, dated the
time of purchase or the additional time of purchase, as the case may be, in form
and substance reasonably satisfactory to UBS.
(d) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in
writing.
(e) The
Registration Statement shall have been filed and shall have become effective
under the Act. The Prospectus Supplement shall have been filed with
the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New
York City time, on the second full business day after the date of this Agreement
(or such earlier time as may be required under the Act).
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(f)
Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement
and all amendments thereto shall not 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) neither the Basic
Prospectus nor the Prospectus, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; (iv) no Disclosure
Package, and no amendment or supplement thereto, shall include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not
misleading.
(g) The
Company will, at the time of purchase and, if applicable, at the additional time
of purchase, deliver to you a certificate of its Chief Executive Officer and its
Chief Financial Officer, dated the time of purchase or the additional time of
purchase, as the case may be, in the form attached as Exhibit B
hereto.
(h) The
Company will, at the time of purchase and, if applicable, at the additional time
of purchase, deliver to you the certificates of its Chief Financial Officer,
dated the time of purchase or the additional time of purchase, as the case may
be, in the form attached as Exhibit C-1 and Exhibit C-2
hereto
(i)
You shall have received each of the signed Lock-Up Agreements referred to in
Section 4(r)
hereof, and each such Lock-Up Agreement shall be in full force and effect at the
time of purchase and the additional time of purchase, as the case may
be.
(j)
The Company shall have furnished to the Underwriters such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus as of the time of purchase and, if applicable, the
additional time of purchase, as any Underwriter may reasonably
request.
(k)
The Shares shall have been approved for listing on the NYSE, subject only to
notice of issuance at or prior to the time of purchase or the additional time of
purchase, as the case may be.
(l)
FINRA shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
(m) Between
the time of execution of this Agreement and the time of purchase or the
additional time of purchase, as the case may be, (A) no material adverse change
or any development involving a prospective material adverse change in the
business, properties, management, financial condition or results of operations
of the Company and the Subsidiaries taken as a whole shall occur or become known
and (B) no transaction which is material and adverse to the Company has been
entered into by the Company or any of the Subsidiaries.
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7.
Effective Date of Agreement;
Termination. This Agreement shall become effective when the
parties hereto have executed and delivered this Agreement.
The obligations of the several
Underwriters hereunder shall be subject to termination in the absolute
discretion of UBS, if (1) since the time of execution of this Agreement or the
earlier respective dates as of which information is given in the Registration
Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, there has been any change or any development involving a
prospective change in the business, properties, management, financial condition
or results of operations of the Company and the Subsidiaries taken as a whole,
the effect of which change or development is, in the sole judgment of UBS, so
material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Basic Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, or (2) since the time of
execution of this Agreement, there shall have occurred: (A) a suspension or
material limitation in trading in securities generally on the NYSE, the American
Stock Exchange or the NASDAQ; (B) a suspension or material limitation in trading
in the Company’s securities on the NYSE; (C) a general moratorium on commercial
banking activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (D) an outbreak or escalation of hostilities or
acts of terrorism involving the United States or a declaration by the United
States of a national emergency or war; or (E) any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any such event specified in clause (D) or (E), in
the sole judgment of UBS, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Basic Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, or (3) since the time of
execution of this Agreement, there shall have occurred any downgrading, or any
notice or announcement shall have been given or made of: (A) any intended or
potential downgrading or (B) any watch, review or possible change that does not
indicate an affirmation or improvement in the rating accorded any securities of
or guaranteed by the Company or any Subsidiary by any “nationally recognized
statistical rating organization,” as that term is defined in Rule 436(g)(2)
under the Act.
If UBS elects to terminate this
Agreement as provided in this Section 7,
the Company shall be notified promptly in writing.
If
the sale to the Underwriters of the Shares, as contemplated by this Agreement,
is not carried out by the Underwriters for any reason permitted under this
Agreement, or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(p);
5
and 9
hereof), and the Underwriters shall be under no obligation or liability to the
Company under this Agreement (except to the extent provided in Section 9
hereof).
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8.
Increase in Underwriters’
Commitments. Subject to Sections 6
and 7
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Shares to be purchased by it hereunder (otherwise than for a failure of
a condition set forth in Section 6
hereof or a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7
hereof) and if the number of Shares which all Underwriters so defaulting shall
have agreed but failed to take up and pay for does not exceed 10% of the total
number of Shares, the non-defaulting Underwriters (including the Underwriters,
if any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Shares they are obligated to purchase
pursuant to Section 1
hereof) the number of Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up
and paid for by such non-defaulting Underwriters in such amount or amounts as
UBS may designate with the consent of each Underwriter so designated or, in the
event no such designation is made, such Shares shall be taken up and paid for by
all non-defaulting Underwriters pro rata in proportion to the aggregate number
of Shares set forth opposite the names of such non-defaulting Underwriters in
Schedule
A.
Without relieving any defaulting
Underwriter from its obligations hereunder, the Company agrees with the
non-defaulting Underwriters that it will not sell any Shares hereunder unless
all of the Shares are purchased by the Underwriters (or by substituted
Underwriters selected by UBS with the approval of the Company or selected by the
Company with the approval of UBS).
If a new Underwriter or Underwriters
are substituted by the Underwriters or by the Company for a defaulting
Underwriter or Underwriters in accordance with the foregoing provision, the
Company or UBS shall have the right to postpone the time of purchase for a
period not exceeding five business days in order that any necessary changes in
the Registration Statement and the Prospectus and other documents may be
effected.
The term “Underwriter” as used in this
Agreement shall refer to and include any Underwriter substituted under this
Section 8
with like effect as if such substituted Underwriter had originally been named in
Schedule A
hereto.
If the aggregate number of Shares which
the defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the
total number of Shares which all Underwriters agreed to purchase hereunder, and
if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase
of all the Shares which the defaulting Underwriter or Underwriters agreed to
purchase hereunder, this Agreement shall terminate without further act or deed
and without any liability on the part of the Company to any Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder,
shall relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
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9.
Indemnity and
Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors, officers and members, any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and any “affiliate” (within the meaning of Rule 405 under the Act)
of such Underwriter, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or arises out of or is based upon any omission
or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as any
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use in, the Registration Statement or arises out of or is based upon any
omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated
in such Registration Statement or was necessary to make such information not
misleading, (ii) any untrue statement or alleged untrue statement of a material
fact included in any Prospectus (the term Prospectus for the purpose of this
Section 9
being deemed to include the Basic Prospectus, the Prospectus Supplement, the
Prospectus and any amendments or supplements to the foregoing), in any Covered
Free Writing Prospectus, in any “issuer information” (as defined in Rule 433
under the Act) of the Company, which “issuer information” is required to be, or
is, filed with the Commission, or in any Prospectus together with any
combination of one or more of the Covered Free Writing Prospectuses, if any, or
arises out of or is based upon any omission or alleged omission to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except, with
respect to such Prospectus or any Permitted Free Writing Prospectus, insofar as
any such loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, such Prospectus or Permitted Free Writing
Prospectus or arises out of or is based upon any omission or alleged omission to
state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such
information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which
they were made, not misleading, (iii) any untrue statement or alleged untrue
statement made by the Company in Section 3 hereof or the failure by the Company
to perform when and as required any agreement or covenant contained herein, or
(iv) any untrue statement or alleged untrue statement of any material fact
contained in any audio or visual materials provided by the Company or based upon
written information furnished by or on behalf of the Company, including, without
limitation, slides, videos, films or tape recordings used in connection with the
marketing of the Shares.
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(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company), or
arises out of or is based upon any omission or alleged omission to state a
material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in, a
Prospectus or a Permitted Free Writing Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in such
Prospectus or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not
misleading.
(c) If
any action, suit or proceeding (each, a “Proceeding”) is
brought against a person (an “indemnified party”)
in respect of which indemnity may be sought against the Company or an
Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a)
or (b),
respectively, of this Section 9,
such indemnified party shall promptly notify such indemnifying party in writing
of the institution of such Proceeding and such indemnifying party shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the
omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded based on advice of counsel that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such indemnifying party and paid as incurred (it
being understood, however, that such indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent but, if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 9(c),
then the indemnifying party agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault or culpability or a
failure to act by or on behalf of such indemnified party.
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(d) If
the indemnification provided for in this Section 9
is unavailable to an indemnified party under subsections (a)
and (b)
of this Section 9
or insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) 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 or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same respective proportions as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative fault of
the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
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(e) The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in subsection (d)
above. Notwithstanding the provisions of this Section 9,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damage which such Underwriter has otherwise been required to pay
by reason of such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 9
are several in proportion to their respective underwriting commitments and not
joint.
(f) The
indemnity and contribution agreements contained in this Section 9
and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, or any of their
respective partners, directors, officers or members or any person (including
each partner, officer, director or member of such person) who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors or officers or
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company and
each Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company’s officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement, the Basic Prospectus,
the Prospectus or any Permitted Free Writing Prospectus.
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10. Information Furnished by the
Underwriters. The statements set forth under the caption
“Underwriting” in the Prospectus, only insofar as such statements relate to the
amount of selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters, constitute
the only information furnished by or on behalf of the Underwriters, as such
information is referred to in Sections 3
and 9
hereof.
11. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities LLC,
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate Department; and
if to the Company, shall be sufficient in all respects if delivered or sent to
the Company at the offices of the Company at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000 Attention: X. Xxxxxx Xxxxxxx, Chief Executive
Officer.
12. Governing Law;
Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or
indirectly, shall be governed by, and construed in accordance with, the laws of
the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
Agreement.
13. Submission to
Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against any Underwriter
or any indemnified party. Each Underwriter and the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court following the exhaustion of all available appeals
shall be conclusive and binding upon the Company and may be enforced in any
other courts to the jurisdiction of which the Company is or may be subject, by
suit upon such judgment.
14. Parties at
Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Company and to the extent
provided in Section 9 hereof the controlling
persons, partners, directors, officers, members and affiliates referred to in
such Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person,
partnership, association or corporation (including a purchaser, as such
purchaser, from the Underwriters) shall acquire or have any right under or by
virtue of this Agreement.
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15. No Fiduciary
Relationship. The Company hereby acknowledges that the
Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Company’s securities. The Company further
acknowledges that the Underwriters are acting pursuant to a contractual
relationship created solely by this Agreement entered into on an arm’s length
basis, and in no event do the parties intend that the Underwriters act or be
responsible as a fiduciary to the Company, its management, stockholders or
creditors or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or
similar obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that
effect. The Company and the Underwriters agree that they are each
responsible for making their own independent judgments with respect to any such
transactions and that any opinions or views expressed by the Underwriters to the
Company regarding such transactions, including, but not limited to, any opinions
or views with respect to the price or market for the Company’s securities, do
not constitute advice or recommendations to the Company. The Company
and the Underwriters agree that the Underwriters are acting as principals and
not the agents or fiduciaries of the Company and the Underwriters have not
assumed, and will not assume, any advisory responsibility in favor of the
Company with respect to the transactions contemplated hereby or the process
leading thereto (irrespective of whether the Underwriters have advised or are
currently advising the Company on other matters). The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the Underwriters with respect to any breach or alleged
breach of any fiduciary, advisory or similar duty to the Company in connection
with the transactions contemplated by this Agreement or any matters leading up
to such transactions.
16. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
17. Successors and
Assigns. This Agreement shall be binding upon the Underwriters
and the Company and their successors and assigns and any successor or assign of
any substantial portion of the Company’s and any of the Underwriters’ respective
businesses and/or assets.
18. Miscellaneous. UBS,
an indirect, wholly owned subsidiary of UBS AG, is not a bank and is separate
from any affiliated bank, including any U.S. branch or agency of UBS
AG. Because UBS is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including
obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
[The Remainder of
This Page Intentionally Left Blank; Signature Page Follows]
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If the foregoing correctly sets forth
the understanding between the Company and the several Underwriters, please so
indicate in the space provided below for that purpose, whereupon this Agreement
and your acceptance shall constitute a binding agreement among the Company and
the Underwriters, severally.
| Very truly yours, | |||
| Omega Healthcare Investors, Inc. | |||
|
By:
|
/s/ X. Xxxxxx Xxxxxxx | ||
| Name: X. Xxxxxx Xxxxxxx | |||
| Title: Chief Executive Officer | |||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxxx | ||
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
|||
|
Title:
Chief Financial Officer
|
|||
Accepted
and agreed to as of the date
first
above written, on behalf of
themselves
and the other several
Underwriters
named in Schedule A
UBS
Securities LLC
Xxxxxx,
Xxxxxxxx & Company, Incorporated
By: UBS
Securities LLC
|
By:
|
/s/ Xxx Xxxxxxxx | ||
|
Name:
Xxx Xxxxxxxx
|
|||
|
Title: Managing
Director
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx | ||
|
Name:
Xxxxx Xxxxxx
|
|||
|
Title:
Executive Director
|
