1
Exhibit 1.1
913,242 SHARES
HEALTH CARE REIT, INC.
COMMON STOCK
($1.00 PAR VALUE)
UNDERWRITING AGREEMENT
March 25, 1998
EVEREN SECURITIES, INC.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Health Care REIT, Inc., a Delaware corporation (the "Company"),
proposes to sell to EVEREN Securities, Inc. (the "Underwriter"), an aggregate of
913,242 shares (the "Shares") of the Company's Common Stock, $1.00 par value
per share ("Common Stock").
As the Underwriter, you have advised the Company (a) that you are
authorized to enter into this Agreement and (b) that you are willing to purchase
the Shares.
In consideration of the mutual agreements contained herein and of the
interest of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(i) A registration statement on Form S-3 (File No. 333-43177)
with respect to the Shares has been carefully prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission under
the Act. The Company has complied with the conditions for the use of
Form S-3. Copies of such registration statement, including any
amendments thereto, the preliminary prospectuses (meeting the
requirements of Rule 430A of the Rules and Regulations) contained
therein, the exhibits, financial statements and schedules, as finally
amended and revised, and all documents incorporated by reference have
heretofore been delivered by the Company to you. Such registration
statement, herein referred to as the "Registration Statement," which
shall be deemed to include all information omitted therefrom in
reliance upon Rule 430A and contained in the Prospectus referred to
below and all information incorporated by reference therein, has been
declared effective by the Commission under the Act and no
post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. The form of prospectus first filed
by the Company with the Commission pursuant to its Rule 424(b) and
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Rule 430A, or if no such filing is required, the form of final
prospectus included in the Registration Statement at the time the
Registration Statement is declared effective, is herein referred to as
the "Prospectus." Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus." Any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
and any supplements or amendments thereto filed with the Commission as
of the date of such Preliminary Prospectus or Prospectus, as the case
may be, and in the case of any reference herein to any Preliminary
Prospectus or Prospectus, also shall be deemed to include any
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act, as of the date of such Preliminary Prospectus
or Prospectus, and any supplements or amendments thereto, filed with
the Commission after the date of the filing of the Prospectus under
Rule 424(b) or 430A, and prior to the termination of the offering of
the Shares by the Underwriter. Any reference to any amendment or
supplement to any Preliminary Prospectus or Prospectus, as the case
may be, shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference into such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference into the Registration Statement.
(ii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Registration Statement;
the Company is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification, and
in which the failure to qualify would have a materially adverse effect
upon the business of the Company; except for HCRI Pennsylvania
Properties, Inc., HCRI Texas Properties, Inc., HCRI Overlook Green,
Inc., HCRI Texas Properties, Ltd., Health Care REIT International,
Inc., HCN Atlantic LP, Inc. and HCN Atlantic GP, Inc., the Company has
no subsidiaries.
(iii) The outstanding shares of Common Stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable and are duly listed on the New York Stock Exchange; the
Shares to be issued and sold by the Company have been duly authorized
and when issued and paid for as contemplated herein will be validly
issued, fully-paid and non-assessable; and no preemptive or similar
rights of stockholders exist with respect to any of the Shares or the
issue and sale thereof.
(iv) The shares of authorized capital stock of the Company,
including the Shares, conform with the statements concerning them in
the Registration Statement.
(v) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus relating to the
proposed offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains, and the Prospectus, and
any amendments or supplements thereto, contain or will contain, all
statements which are
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required to be stated therein by, and in all material respects conform
to or will conform to, as the case may be, the requirements of the Act
and the Rules and Regulations. The documents incorporated by reference
in the Prospectus, at the time they were or will be filed with the
Commission, conformed or will conform at the time of filing, in all
material respects to the requirements of the Exchange Act or the Act,
as applicable, and the Rules and Regulations of the Commission
thereunder. Neither the Registration Statement nor any amendment
thereto, and neither the Prospectus nor any supplement thereto,
including any documents incorporated by reference therein, contains or
will contain, as the case may be, any untrue statement of a material
fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or
supplement, or any documents incorporated by reference therein, in
reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of the Underwriter, specifically for use in
the preparation thereof.
(vi) The financial statements of the Company, together with
related notes and schedules as set forth or incorporated by reference
in the Registration Statement, present fairly the financial position
and the results of operations of the Company at the indicated dates and
for the indicated periods. Such financial statements and the related
notes and schedules have been prepared in accordance with generally
accepted accounting principles, consistently applied throughout the
periods involved, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary financial and
statistical data included or incorporated by reference in the
Registration Statement present fairly the information shown therein
and, to the extent based upon or derived from the financial statements,
have been compiled on a basis consistent with the financial statements
presented therein.
(vii) There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or involving
any property of the Company before any court or administrative agency
which might reasonably be expected to result in any material adverse
change in the business or condition (financial or otherwise) of the
Company, except as set forth in the Registration Statement.
(viii) The Company has good and marketable title to all of the
properties and assets reflected in the financial statements hereinabove
described (or as described in the Registration Statement as owned by
it), subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except those reflected in such financial statements (or as
described in the Registration Statement) or which are not material in
amount or which do not interfere with the use made or proposed to be
made of the property. The leases, agreements to purchase and mortgages
to which the Company is a party, and the guaranties of third parties
(a) are the legal, valid and binding obligations of the Company and, to
the knowledge of the Company, of all other parties thereto, and the
Company knows of no default or defenses currently existing with respect
thereto which might reasonably be expected to result in any material
adverse change in the business or condition (financial or otherwise) of
the
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Company, and (b) conform to the descriptions thereof set forth in
the Registration Statement. Each mortgage which the Company holds on
the properties described in the Registration Statement constitutes a
valid mortgage lien for the benefit of the Company on such property.
(ix) The Company has filed all Federal, state and foreign
income tax returns which have been required to be filed and has paid
all taxes indicated by said returns and all assessments received by it
to the extent that such taxes have become due and are not being
contested in good faith. All tax liabilities have been adequately
provided for in the financial statements of the Company.
(x) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, there has not been any material adverse change or any
development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, of the Company or the
earnings, business affairs, management, or business prospects of the
Company, whether or not occurring in the ordinary course of business,
and the Company has not incurred any material liabilities or
obligations and there has not been any material transaction entered
into by the Company, other than transactions in the ordinary course of
business and changes and transactions contemplated by the Registration
Statement, as it may be amended or supplemented. The Company has no
material contingent obligations which are not disclosed in the
Registration Statement, as it may be amended or supplemented.
(xi) The Company is not (a) in default under any agreement,
lease, contract, indenture or other instrument or obligation to which
it is a party or by which it or any of its properties is bound or the
Company's certificate of incorporation or by-laws, (b) in violation of
any statute, or (c) in violation of any order, rule or regulation
applicable to the Company or its properties, of any court or of any
regulatory body, administrative agency or other governmental body, any
of which defaults or violations described in clauses (a) through (c)
is, or after any required notice and passage of any applicable grace
period would be, of material significance in respect of the business or
condition (financial or otherwise) of the Company. The consummation of
the transactions herein contemplated and the fulfillment of the terms
hereof will not conflict with or constitute a violation of any statute
or conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company is
a party or by which the Company or the Company's properties may be
bound, or of the certificate of incorporation or by-laws of the Company
or any order, rule or regulation applicable to the Company or the
Company's properties or of any court or of any regulatory body,
administrative agency or other governmental body.
(xii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such
additional steps as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or may be necessary to qualify
the Shares for public offering by the Underwriter under state
securities or Blue Sky laws) has been obtained or made by the Company,
and is in full force and effect.
(xiii) The Company holds all material licenses, certificates and
permits from
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governmental authorities which are necessary to the conduct of its
businesses and the Company has not received any notice of infringement
or of conflict with asserted rights of others with respect to any
patents, patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company.
(xiv) The Company qualifies as a real estate investment trust
pursuant to Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), has so qualified for the taxable years
ended December 31, 1984 through December 31, 1996 and no transaction or
other event has occurred or is contemplated which would prevent the
Company from so qualifying for its current taxable year.
(xv) To the best of the Company's knowledge, Ernst & Young
LLP, who have certified certain of the financial statements and related
schedules filed with the Commission as part of, or incorporated by
reference in, the Registration statement, are independent public
accountants as required by the Act and the Rules and Regulations.
(xvi) To the knowledge of the Company, after inquiry of its
officers and directors, there are no affiliations with the NASD among
the Company's officers, directors, or principal stockholders, except as
set forth in the Registration Statement or as otherwise disclosed in
writing to the Underwriter.
(xvii) This Agreement has been duly authorized, executed and
delivered by the Company. (xviii) Neither the Company nor any of its
officers or directors has taken nor will any of them take, directly or
indirectly, any action resulting in a violation of Regulation M
promulgated under the Exchange Act, or designed to cause or result in,
or which has constituted or which reasonably might be expected to
constitute, the stabilization or manipulation of the price of the
Company's Common Stock. The Company acknowledges that the Underwriters
may engage in transactions that stabilize, maintain or otherwise affect
the price of the Common Stock, including stabilizing bids, syndicate
covering transactions and the imposition of penalty bids.
(xix) Except as disclosed in the Registration Statement, the
Company is not a party to any written contract or agreement relating to
any purchase of real property or the lending of funds secured by real
property which is probable of being consummated.
(xx) The Shares have been approved for listing upon official
notice of issuance on the New York Stock Exchange.
(xxi) The Company is not, and immediately after the sale of the
Shares pursuant to the terms and conditions of this Agreement will not
be, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
2. Purchase, Sale and Delivery of the Shares. On the basis of the
representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Company agrees to sell to the Underwriter, and
the Underwriter agrees to purchase, at a price of $26.00625 per share, the
Shares.
Payment for the Shares to be sold hereunder is to be made by wire
transfer in immediately available funds to the order of the Company for the
Shares to be sold by it against delivery of certificates therefor to the
Underwriter. Such delivery is to be made at the offices of EVEREN
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Securities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, at 9:00 A.M. Chicago
time, on the third business day after the date of this Agreement or at such
other time and date not later than three business days thereafter as you and the
Company shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York Stock Exchange is open for trading and on which banks in New York are open
for business and not permitted by law or executive order to be closed) . The
certificates for the Shares will be delivered by ChaseMellon Shareholder
Services, L.L.C. (the "Transfer Agent") in such denominations and in such
registrations as the Underwriter requests in writing not later than the second
full business day prior to the Closing Date, and will be made available for
inspection by the Underwriter at least one business day prior to the Closing
Date at such place as the Underwriter and the Company shall agree.
3. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriter that:
(i) The Company will (a) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations, if the final
form of the prospectus is not included in the Registration Statement at
the time the Registration Statement is declared effective, a Prospectus
containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430A, if applicable,
of the Rules and Regulations, (b) use its best efforts to cause the
Registration Statement to remain in effect as to the Shares for so long
as the Underwriter may deem necessary in order to complete the
distribution of the Shares, (c) not file any amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference therein, of which the Underwriter shall not
previously have been advised and furnished with a copy or to which the
Underwriter shall have reasonably objected in writing or which is not
in compliance with the Rules and Regulations and (d) file on a timely
basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission subsequent to
the date of the Prospectus and prior to the termination of the offering
of the Shares by the Underwriter; provided, however, that for each such
report or definitive proxy or information statement, the Company will
not file any such report or definitive proxy or information statement,
or amendment thereto, of which the Underwriter shall not previously
have been advised and furnished with a copy or to which the Underwriter
shall have reasonably objected in writing or which is not in compliance
with the Rules and Regulations.
(ii) The Company will advise the Underwriter promptly of any
request of the Commission for amendment of the Registration Statement
or for supplement to the Prospectus or for any additional information,
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the
Prospectus or of the institution of any proceedings for that purpose,
or of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, and the Company will use its best efforts to
prevent (a) the issuance of any such stop order preventing or
suspending the use of the Prospectus, or (b) any such suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
and to obtain as soon as possible the lifting of any such stop order,
if issued, or such suspension of qualification.
(iii) The Company will cooperate with the Underwriter in
endeavoring to qualify
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the Shares for sale under the securities laws of such jurisdictions as
the Underwriter may reasonably have designated and will make such
applications, file such documents, and furnish such information as may
be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or to subject itself
to taxation as doing business in any jurisdiction where it is not now
so qualified or required to file such a consent or so subject to
taxation. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as the
Underwriter may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Underwriter, from time to time, as many copies of any Preliminary
Prospectus as the Underwriter may reasonably request. The Company will
deliver to, or upon the order of, the Underwriter during the period
when delivery of a Prospectus is required under the Act, as many copies
of the Prospectus in final form, or as thereafter amended or
supplemented, as the Underwriter may reasonably request. The Company
will deliver to the Underwriter at or before the Closing Date, six
signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the
Underwriter such number of copies of the Registration Statement,
including documents incorporated by reference therein, but without
exhibits, and of all amendments thereto, as the Underwriter may
reasonably request.
(v) Subject to the provisions of Section 4(i) above, if
during the period in which a prospectus is required by law to be
delivered by the Underwriter or a dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriter, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (a) prepare and file with the Commission
an appropriate amendment to the Registration Statement or supplement to
the Prospectus or (b) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated
by reference in the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with
law.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration
Statement, an earnings statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 of the Rules and Regulations and will advise the
Underwriter in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the
Closing Date, deliver to the Underwriter copies of annual reports and
copies of all other documents, reports and information furnished by the
Company to its stockholders or filed with any securities
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exchange pursuant to the requirements of such exchange or with the
Commission pursuant to the Act or the Exchange Act. The Company will
deliver to the Underwriter similar reports with respect to significant
subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company's financial statements.
(viii) The Company will use its best efforts to list the
Shares on the New York Stock Exchange.
(ix) The Company will continue to elect to qualify as a "real
estate investment trust" under the Code, and will use its best efforts
to continue to meet the requirements to qualify as a "real estate
investment trust."
4. COSTS AND EXPENSES. The Company will pay all costs, expenses
and fees incident to the performance of its obligations under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company the cost of printing and delivering to, or as requested by, the
Underwriter, copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the applicable listing agreement for the New York
Stock Exchange, the Blue Sky Survey and any supplements or amendments thereto;
the filing fees of the Commission; the filing fees and expenses (including legal
fees and disbursements) incident to securing any required review by the NASD of
the terms of the sale of the Shares; the fees incident to the listing agreement
for the New York Stock Exchange; and the expenses, including the fees and
disbursements of counsel for the Underwriter, incurred in connection with the
qualification of the Shares under state securities or Blue Sky laws. Any
transfer taxes imposed on the sale of the Shares to the Underwriter will be paid
by the Company. The Company shall not, however, be required to pay for any of
the Underwriter's expenses (other than those related to qualification under
state securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Underwriter pursuant to Section 5
hereof (other than a termination as a result of a failure to satisfy the
condition set forth in subparagraph (iv) of Section 5 hereof), or by reason of
any failure, refusal or inability on the part of the Company to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on its part to be performed, unless such failure to satisfy
said condition or to comply with said terms be due to the default or omission of
the Underwriter, then the Company shall reimburse the Underwriter for reasonable
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred in connection with investigating, marketing and proposing to market the
Shares or in contemplation of performing its obligations hereunder, but the
Company shall not in any event be liable to the Underwriter for damages on
account of loss of anticipated profits from the sale by it of the Shares.
5. Conditions of Obligations of the Underwriter. The obligation of the
Underwriter to purchase the Shares on the Closing Date is subject to the
accuracy, as of the Closing Date, of the representations and warranties of the
Company contained herein, and to the performance by the Company of its covenants
and obligations hereunder and to the following additional conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to
the knowledge of the Company, shall be contemplated by the Commission.
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(ii) The Underwriter shall have received on the Closing Date
the opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP, counsel for the Company,
dated the Closing Date and addressed to the Underwriter to the effect
that:
(a) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus.
(b) The Company is duly qualified to transact
business in all jurisdictions in which the conduct of its
business requires such qualification, and in which the failure
to qualify would have a materially adverse effect upon the
business of the Company.
(c) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus; the authorized shares of its Common Stock
have been duly authorized; the outstanding shares of its
Common Stock have been duly authorized and validly issued and
are fully paid and nonassessable; all of the Shares conform in
all material respects to the description thereof contained in
the Prospectus; the certificates for the Shares are in due and
proper form; the shares of Common Stock to be sold by the
Company pursuant to this Agreement have been duly authorized
and will be validly issued, fully paid and non-assessable when
issued and paid for as contemplated by this Agreement; and no
preemptive or similar rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof.
(d) The Registration Statement has become effective
under the Act and, to such counsel's knowledge no stop order
proceedings with respect thereto have been instituted or are
pending or threatened under the Act.
(e) The Registration Statement, the Prospectus and
each amendment or supplement thereto and documents
incorporated by reference therein comply as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the applicable rules and
regulations thereunder (except that such counsel need express
no opinion as to the financial statements, schedules and other
financial or statistical information included or incorporated
by reference therein).
(f) The statements under the caption "Description of
Common Stock" in the Registration Statement on Form 8-A, as
amended, which is incorporated by reference into the
Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of law, are accurate
summaries and fairly and correctly present in all material
respects the information called for with respect to such
documents and matters.
(g) The statements under the caption "Certain
Government Regulations" in the Company's Annual Report on Form
10-K, and any amendments thereto, for the fiscal year ended
December 31, 1997 as to matters of law stated therein, have
been reviewed by such counsel and constitute fair summaries of
the matters described therein which are material to the
business or condition (financial or otherwise) of the Company.
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(h) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated
by reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed, incorporated by reference or described as required, and
such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized
in all material respects.
(i) Such counsel knows of no material legal
proceedings pending or threatened against the Company except
as set forth in the Prospectus.
(j) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated do
not and will not conflict with or constitute a violation of
any statute or conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, the
certificate of incorporation or by-laws of the Company, any
material agreement or instrument known to such counsel to
which the Company is a party or by which the Company or the
Company's properties may be bound or any order known to such
counsel or rule or regulation applicable to the Company or the
Company's properties of any court or governmental agency or
body.
(k) This Agreement has been duly authorized, executed
and delivered by the Company.
(1) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
(other than as may be required by the NASD or as required by
state securities and Blue Sky laws as to which such counsel
need express no opinion) except such as have been obtained or
made by the Company, specifying the same.
(m) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940.
In addition, such counsel will provide an opinion, based on such
counsel's own review of the Company's certificate of incorporation, stating that
the Company was organized and continues to be organized in conformity with the
requirements for qualification as a real estate investment trust under
subchapter M of the Code and, based on such counsel's review of the Company's
federal income tax returns and discussions with management and independent
public accountants for the Company, that the Company, taking into account
operations for its taxable and fiscal years ended December 31, 1993 through
December 31, 1996, satisfied the requirements for qualification and taxation as
a real estate investment trust under the Code for such years and that its
proposed method of operation will enable it to meet the requirements for
qualification and taxation as a real estate investment trust under the Code for
its taxable and fiscal year ending December 31, 1997. Furthermore, such counsel
shall opine that the statements contained under the heading "Taxation" in the
Registration Statement and in the Company's Annual Report on Form 10-K, and any
amendments, for the fiscal year ended December 31, 1997 are correct and accurate
in all material respects and present fairly and accurately the material aspects
of the federal income tax treatment
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of the Company and of its stockholders.
In rendering such opinion, Xxxxxxxx, Loop & Xxxxxxxx, LLP may rely as
to matters governed by the laws of states other than the laws of State of Ohio,
the corporate laws of the State of Delaware or Federal laws on local counsel in
such jurisdictions, provided that in such case Xxxxxxxx, Loop & Xxxxxxxx, LLP
shall state that they believe that they and the Underwriter are justified in
relying on such other counsel and such other counsel shall indicate that the
Underwriter may rely on such opinion. As to matters of fact, to the extent they
deem proper, such counsel may rely on certificates of officers of the Company
and public officials so long as such counsel states that they have no reason to
believe that either the Underwriter or they are not justified in relying on such
certificates. In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the attention of
such counsel which leads them to believe that the Registration Statement, as of
the time it became effective under the Act, the Prospectus or any amendment or
supplement thereto, on the date it was filed pursuant to Rule 424(b), or any of
the documents incorporated by reference therein, as of the date of effectiveness
of the Registration Statement or, in the case of documents incorporated by
reference into the Prospectus after the date of effectiveness of the
Registration Statement, as of the respective date when such documents were filed
with the Commission, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, or any of the documents
incorporated by reference therein, as of the date of effectiveness of the
Registration Statement or, in the case of documents incorporated by reference
into the Prospectus after the date of effectiveness of the Registration
Statement, as of the respective date when such documents were filed with the
Commission, as of the Closing Date, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
(except that such counsel need express no view as to financial statements,
schedules and other financial or statistical information included therein). With
respect to such statement, Xxxxxxxx, Loop & Xxxxxxxx, LLP, may state that their
belief is based upon the procedures set forth or incorporated by reference
therein, but is without independent check and verification.
(iii) The Underwriter shall have received from Xxxxxxx and
Xxxxxx, counsel for the Underwriter, an opinion dated the Closing Date,
as the case may be, with respect to the organization of the Company,
the validity of the Shares, the Registration Statement, the Prospectus
and other related matters as the Underwriter reasonably may request and
such counsel shall have received such papers and information as they
reasonably request to enable them to pass upon such matters.
(iv) On the date of this Agreement and on the Closing Date,
you shall have received from Ernst & Young LLP, a letter or letters,
dated the date of this Agreement and the Closing Date, respectively, in
form and substance satisfactory to you, confirming that they are
independent public accountants with respect to the Company within the
meaning of the Act and the published Rules and Regulations, and stating
to the effect set forth in Schedule I hereto.
(v) The Underwriter shall have received on the Closing Date a
certificate or certificates of the Chairman of the Board, Chief
Executive Officer and President and the
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Chief Financial Officer of the Company to the effect that as of the
Closing Date each of them severally represents as follows:
(a) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceedings for such purpose have been taken or are, to his
knowledge, contemplated by the Commission.
(b) He does not know of any litigation instituted or
threatened against the Company of a character required to be
disclosed in the Registration Statement which is not so
disclosed; he does not know of any material contract required
to be filed as an exhibit to the Registration Statement which
is not so filed; and the representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date.
(c) He has carefully examined the Registration
Statement and the Prospectus and in his opinion, as of the
effective date of the Registration Statement, the statements
contained in the Registration Statement, including any
document incorporated by reference therein, were true and
correct, and such Registration Statement and Prospectus, or
any document incorporated by reference therein, did not omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading and, in his opinion, since the effective date of
the Registration Statement, no event has occurred which should
have been set forth in a supplement to or an amendment of the
Prospectus which has not been so set forth in such supplement
or amendment.
(vi) The Shares to be sold by the Company as of the Closing
Date shall have been duly listed, subject to notice of issuance, on the
New York Stock Exchange.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Underwriter and
to Xxxxxxx and Xxxxxx, counsel for the Underwriter.
If any of the conditions hereinabove provided for in this Section 5
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriter hereunder may be terminated by the
Underwriter by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date.
6. Conditions of the Obligations of the Company. The obligations of the
Company to sell and deliver the portion of the Shares required to be delivered
as and when specified in this Agreement are subject to the conditions that at
the Closing Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and in effect or proceedings therefor initiated
or threatened.
7. Indemnification. (i) The Company agrees to indemnify and hold
harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of the Act against any losses, claims, damages or liabilities
to which the Underwriter or such controlling person may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material fact contained
or incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or
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supplement thereto, or (b) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by the
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made or incorporated by reference in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Underwriter specifically for use in the preparation
thereof; and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of the Underwriter or any
person controlling the Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of any Shares to any person by the
Underwriter if the Underwriter failed to send or give a copy of the Prospectus,
as the same may be amended or supplemented, to that person within the time
required by the Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Prospectus, unless such failure
resulted from non-compliance by the Company with Section 3(iv) or Section 3(v).
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(ii) The Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the Act, against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Underwriter will be
liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made or incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by or through
the Underwriter specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
(iii) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 7, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Sections
7(i)
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or (ii) shall be available to any party who shall fail to give notice as
provided in this Section 7(iii) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise
than on account of the provisions of Sections 7(i) or (ii). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the fees and expenses of the counsel retained by the
indemnified party in the event (a) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (b) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, in which case the indemnifying party shall not
be entitled to assume the defense of such suit notwithstanding its obligation to
bear the fees and expenses of such counsel. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 7(i) and by the Company in the case of parties indemnified
pursuant to Section 7(ii). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. 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 fifth sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent to which the indemnification
obligations of the Company hereunder are applicable if (a) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (b) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement.
(iv) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless to the extent required therein
an indemnified party under Sections 7(i) or (ii) above in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriter from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 7(iii) above, then each
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indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Underwriter
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriter shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Underwriter bear to the total proceeds
of the offering (the proceeds received by the Underwriter being equal to the
total underwriting discounts and commissions received by the Underwriter), in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriter and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 7(iv) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7(iv). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 7(iv) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(iv), (a) the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by the Underwriter and (b) 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.
(v) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 7 hereby
consents to the jurisdiction over any other contributing party, agrees that
process issuing from such court may be served upon him or it by any other
contributing party and consents to the service of such process and agrees that
any other contributing party may join him or it as an additional defendant in
any such proceeding in which such other contributing party is a party.
8. Notices. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telegraphed
and confirmed as follows: if to the Underwriter, to EVEREN Securities, Inc., 00
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, Attention: Xxxx Xxxxxxxx, with a copy to
Xxxxxx Xxxxx, Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000; if to the Company to Health Care REIT, Inc., Xxx XxxXxxx, Xxxxx 0000,
Xxxxxx, Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxxx, Chairman of the Board,
Chief Executive Officer and President.
9. Termination. This Agreement may be terminated by you by notice to
the Company as follows:
(i) at any time prior to the earlier of (a) the time the Shares are
released by you
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for sale, or (b) 11:30 A.M. on the first business day following the
date of this Agreement;
(ii) at any time prior to the Closing Date if any of the
following has occurred: (a) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or
otherwise, of the Company or the earnings, business affairs, management
or business prospects of the Company, whether or not arising in the
ordinary course of business, (b) any outbreak or escalation of
hostilities or declaration of war or national emergency after the date
hereof or other national or international calamity or crisis or change
in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the
financial markets of the United States would, in your reasonable
judgment, make the offering or delivery of the Shares impracticable or
inadvisable, (c) trading in securities on the New York Stock Exchange
or the American Stock Exchange shall have been suspended or materially
limited (other than limitations on hours or numbers of days of trading)
or minimum prices shall have been established for securities on either
such Exchange, (d) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order
of any court or other governmental authority which in your reasonable
opinion materially and adversely affects or will materially or
adversely affect the business or operations of the Company, (e)
declaration of a banking moratorium by either federal or New York State
authorities, (f) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs
which in your reasonable opinion has a material adverse effect on the
securities markets in the United States, or (g) any litigation or
proceeding is pending or threatened against the Underwriter which seeks
to enjoin or otherwise restrain, or seeks damages in connection with,
or questions the legality or validity of this Agreement or the
transactions contemplated hereby; or
(iii) as provided in Section 5 of this Agreement.
10. Successors. This Agreement has been and is made solely for the
benefit of the Underwriter and the Company and their respective successors,
executors, administrators, heirs and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Shares merely because of such purchase.
11. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (iii) delivery of and payment for
the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement
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among the Company and the Underwriter in accordance with its terms.
Very truly yours,
HEALTH CARE REIT, INC.
By /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx, Chairman
of the Board, Chief Executive
Officer and President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN SECURITIES, INC.
By /s/ Xxx X. Xxxxx
-------------------------------
Xxx X. Xxxxx
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SCHEDULE I
Pursuant to Section 5(iv) of the Underwriting Agreement, Ernst & Young
LLP shall furnish letters to you to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable Rules and Regulations thereunder.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated by reference
in the Prospectus or the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Act and the applicable Rules and Regulations with respect to
registration statements on Form S-3; and, if applicable, they have made
a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma
financial information, prospective financial statements and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been furnished
to you.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, performing the procedures specified by
the AICPA for a review of interim financial information as discussed in
SAS No. 71, Interim Financial Information, on the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited statements of consolidated income, statements of
consolidated financial position and statements of consolidated
cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles, or
the unaudited statements of consolidated income, statements of
consolidated financial position and statements of consolidated
cash flows included in the Prospectus do not comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations thereunder.
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus.
(C) the unaudited financial statements which were
not included in the
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Prospectus but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items
included in the Prospectus and referred to in Clause (B) were
not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements
included in the Prospectus.
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements.
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated working
capital, net current assets or net assets, or any changes in
any other items specified by you, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter.
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
any changes in any other items specified by you, in each case
as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by
you, except in each case for changes, decreases or increases
which the Prospectus discloses have occurred or may occur or
which are described in such letter.
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by you, which are
derived from the general accounting records of the Company and its
subsidiaries for the periods covered by their reports and any interim
or other periods since the latest period covered by their reports,
which appear in the Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by you, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
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