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Exhibit 1.1
$100,000,000
NATIONAL HEALTH INVESTORS, INC.
7.30% NOTES DUE 2007
UNDERWRITING AGREEMENT
June 25, 1997
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
National Health Investors, Inc., a Maryland corporation (the "Company"),
proposes, upon the terms and conditions set forth herein, to issue and sell
$100,000,000 aggregate principal amount of its 7.30% Notes due 2007 (the
"Notes") to Xxxxx Xxxxxx Inc. (the "Underwriter"). The Notes will be issued
pursuant to the provisions of the Indenture dated as of December 13, 1995
between the Company and Sun Trust Bank, Nashville, N.A., as Trustee (the
"Trustee") as supplemented by the Second Supplemental Indenture thereto to be
dated as of June 30, 1997 (as so supplemented, the "Indenture").
The Company wishes to confirm as follows its agreement with you in
connection with the purchase by you of the Notes.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement (file number 33-85398) on Form S-3 under the
Act (the "registration statement"), including a prospectus relating to the
Notes, and such amendments to such registration statement as may have been
required prior to the date hereof have been similarly prepared and have been
filed with the Commission. Such registration statement, as so amended, and any
post-effective amendments thereto, have been declared by the Commission to be
effective under the Act. Such registration statement, as amended at the date of
this Agreement meets the requirements set forth in Rule 415(a)(1)(x) under the
Act and complies in all other material respects with said Rule. The Company will
next file with the Commission pursuant to Rule 424(b) under the Act a final
prospectus supplement to the basic prospectus included in such registration
statement, as so amended, describing the Notes and the offering thereof, in such
form as has been provided to or discussed with, and approved by the Underwriter.
The term "Registration Statement" as used in this Agreement means the
registration statement, as amended at the time it became effective, as
supplemented or amended prior to the execution of this Agreement, including (i)
all financial schedules and exhibits thereto and (ii) all documents incorporated
by reference or deemed to be incorporated by reference therein. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed and must be declared
effective before the offering of the Notes may commence, the term "Registration
Statement" as used in this Agreement means the registration statement as amended
by said post-effective amendment. The term "Basic Prospectus" as used in this
Agreement means the prospectus included in the Registration Statement. The term
"Prepricing Prospectus" as used in this Agreement means any preliminary form of
the prospectus (as defined herein) specifically relating to the Notes, in the
form first filed with, or transmitted for filing to, the Commission pursuant to
Rule 424 of the Rules and Regulations. The term "Prospectus Supplement" as used
in this Agreement means any prospectus supplement specifically relating to the
Notes, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Act. The term "Prospectus" as used in
this Agreement means the Basic Prospectus together with the Prospectus
Supplement
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except that if such Basic Prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement was first filed pursuant to Rule
424, the term "Prospectus" shall refer to the Basic Prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement. Any reference in
this Agreement to the registration statement, the Registration Statement, the
Basic Prospectus, any Prepricing Prospectus, any Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of the registration statement, the Registration Statement, the Basic Prospectus,
such Prepricing Prospectus, such Prospectus Supplement or the Prospectus, as the
case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, the Basic Prospectus, any
Prepricing Prospectus, any Prospectus Supplement or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") which, upon
filing, are incorporated by reference therein, as required by paragraph (b) of
Item 12 of Form S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the registration
statement, the Registration Statement, the Basic Prospectus, any Prepricing
Prospectus, any Prospectus Supplement, the Prospectus, or any amendment or
supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject to
all the terms and conditions set forth herein, to issue and sell the Notes to
the Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, the Underwriter agrees to purchase the Notes from
the Company, at a purchase price of 99.003268% of the principal amount thereof.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that the
Underwriter proposes to make a public offering of the Notes as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable and initially to offer the Notes upon the terms set forth
in the Prospectus.
4. DELIVERY OF THE NOTES AND PAYMENT THEREFOR. Delivery to the Underwriter
of and payment for the Notes shall be made at the office of Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City time, on
June 30, 1997 (the "Closing Date"). The place of closing for the Notes and the
Closing Date may be varied by agreement between you and the Company.
The Notes will be delivered to you against payment of the purchase price
therefor specified in Section 2 hereof by wire transfer to an account previously
designated to Xxxxx Xxxxxx Inc. by the Company of federal (same day) funds and
registered in such names and in such denominations as you shall request prior to
1:00 P.M., New York City time, on the second business day preceding the Closing
Date. The Notes to be delivered to the Underwriter shall be made available to
you in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the Underwriter as
follows:
a. If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Notes may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
b. The Company will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus, any Prospectus Supplement or the Prospectus or for additional
information; (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Notes for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period of
time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended
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or supplemented) untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
c. The Company will furnish to you, without charge (i) two signed copies of
the registration statement as originally filed with the Commission and of each
amendment thereto, including financial statements and all exhibits to the
registration statement, (ii) such number of conformed copies of the registration
statement as originally filed and of each amendment thereto, but without
exhibits, as you may request, (iii) such number of copies of the Indenture and
the Incorporated Documents, without exhibits, as you may request, and (iv) two
copies of the exhibits to the Incorporated Documents.
d. The Company will not file any amendment to the Registration Statement or
make any amendment or supplement to the Prospectus or, prior to the end of the
period of time referred to in the first sentence in subsection (f) below, file
any document which, upon filing becomes an Incorporated Document, of which you
shall not previously have been advised or to which, after you shall have
received a copy of the document proposed to be filed, you shall object.
e. Prior to the execution and delivery of this Agreement, the Company has
delivered to you, without charge, in such quantities as you have requested,
copies of each form of the Prepricing Prospectus and of each form of the
Prospectus Supplement. The Company consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Notes are offered by the Underwriter and by dealers,
prior to the date of the Prospectus, of each Prepricing Prospectus and each
Prospectus Supplement so furnished by the Company.
f. As soon after the execution and delivery of this Agreement as possible
and thereafter from time to time for such period as in the opinion of counsel
for the Underwriter a prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer, the Company will
expeditiously deliver to the Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the Notes
are offered by the Underwriter and by all dealers to whom Notes may be sold,
both in connection with the offering and sale of the Notes and for such period
of time thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer. If during such period of
time any event shall occur that in the judgment of the Company or in the opinion
of counsel for the Underwriter is required to be set forth in the Prospectus (as
then amended or supplemented) or should be set forth therein in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Prospectus (or to file under the Exchange Act any document which, upon filing,
becomes an Incorporated Document) in order to comply with the Act or any other
law, the Company will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement or
amendment thereto, and will expeditiously furnish to the Underwriter and dealers
a reasonable number of copies thereof. In the event that the Company and you
agree that the Prospectus should be amended or supplemented, the Company, if
requested by you, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
g. The Company will cooperate with you and counsel to the Underwriter in
connection with the registration or qualification of the Notes for offering and
sale by the Underwriter and by dealers under the securities or Blue Sky laws of
such jurisdictions as you may designate and will file such consents to service
of process or other documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now
otherwise required to be so qualified or to
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take any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Notes, in any jurisdiction
where it is not now so subject.
h. The Company will make generally available to its securityholders a
consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
i. So long as any of the Notes are outstanding, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as you may reasonably request.
j. If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than by notice given by
you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or
if this Agreement shall be terminated by the Underwriter because of any failure
or refusal on the part of the Company to comply with the terms or fulfill any of
the conditions of this Agreement, the Company agrees to reimburse the
Underwriter for all out-of-pocket expenses (including fees and expenses of
counsel for the Underwriter) incurred by you in connection herewith.
k. The Company will apply the net proceeds from the sale of the Notes to
be sold by it hereunder substantially in accordance with the description thereof
set forth in the Prospectus.
l. If Rule 430A of the Act is employed, the Company will timely file the
Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time
and manner of such filing.
m. Except as stated in this Agreement and in the Prepricing Prospectus,
Prospectus Supplement and Prospectus, the Company has not taken, nor will it
take, directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Notes.
n. The Company will use its best efforts to continue to qualify as a
real estate investment trust ("REIT") under Sections 856 through 860 of the
Code.
o. The Company will not file any registration statement with the
Commission for the registration of any securities of the Company for a period of
30 days after the date of the Prospectus Supplement without the prior written
consent of Xxxxx Xxxxxx Inc.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Underwriter that:
a. No order preventing or suspending the use of any Prepricing
Prospectus or the Prospectus Supplement has been issued and no proceeding for
that purpose has been instituted or threatened by the Commission or the
securities authority of any state or other jurisdiction. No stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued and no proceeding for that purpose has been instituted or
threatened by the Commission or the securities authority of any state or other
jurisdiction.
b. The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement have been duly authorized by all
necessary corporate action of the Company, and, at the Closing Date, this
Agreement will have been duly executed and delivered by the Company, and this
Agreement will constitute a valid and binding instrument of the Company
enforceable against the Company in accordance with its respective terms, subject
to the effect of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating
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to creditors' rights generally and to the application of equitable principles in
any proceeding, whether at law or in equity, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws.
c. Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the provisions of the Act.
d. The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. The registration
statement in the form in which it became or becomes effective and also in such
form as it may be when any post-effective amendment thereto shall become
effective and the Prospectus and any supplement or amendment thereto, including
the Prospectus Supplement, when filed with the Commission under Rule 424(b)
under the Act, complied or will comply in all material respects with the
provisions of the Act and did not or will not at any such times 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 this representation and warranty does not apply to statements in or
omissions from the registration statement or the Prospectus (or any supplement
or amendment thereto) made in reliance upon and in conformity with (i)
information relating to the Underwriter furnished to the Company in writing by
or on behalf of the Underwriter expressly for use therein or (ii) the Trustee's
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "1939 Act").
e. The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Act, the Exchange Act and the respective rules and regulations
thereunder; any further Incorporated Documents so filed will, when they are
filed, conform in all material respects with the requirements of the Act, the
Exchange Act and the respective rules and regulations thereunder; no such
document when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and no such further document, when it is filed, will contain an
untrue statement of a material fact or will omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
f. The Company has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Notes, will
not distribute any offering material in connection with the offering and sale of
the Notes other than the Registration Statement, the Prepricing Prospectus, the
Prospectus Supplement, the Prospectus or other materials, if any, permitted by
the Act.
g. The Indenture has been duly and validly authorized and, upon its
execution, delivery and performance by the Company and assuming due execution,
delivery and performance by the Trustee, will be a valid and binding agreement
of the Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally, and has been (or will have been) duly qualified
under the 1939 Act and conforms to the description thereof in the Registration
Statement and the Prospectus.
h. The Notes have been duly authorized and, when executed by the
Company and authenticated by the Trustee in accordance with the Indenture and
delivered to the Underwriter against payment therefor in accordance with the
terms hereof, will have been validly issued and delivered, and will constitute
valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
the enforcement of creditors' rights generally, and the Notes will conform to
the description thereof in the Registration Statement and the Prospectus.
i. The authorized and outstanding capital stock of the Company is as
set forth under the caption "Description of the Company's Capital Stock" in the
Prospectus. All outstanding capital stock of the Company has been duly
authorized and validly issued, is fully paid and nonassessable and is free of
any preemptive or similar rights;
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j. No holder of any security of the Company or any other person has
the right, contractual or otherwise, which right has not been waived by the
holder thereof, (A) to cause the Company to sell or otherwise issue to them, or
to permit them to underwrite the sale of, the Notes, or (B) as a result of the
filing of the registration statement or consummation of the transactions
contemplated by this Agreement, to require registration under the Act of any
securities of the Company.
k. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Maryland with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as presently conducted and as disclosed in the Registration Statement
and the Prospectus, and is duly registered and qualified to conduct its business
and is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not and
will not have a material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect"). The term "Subsidiary" or "Subsidiaries" means (A) a
corporation, a majority of the voting or capital stock of which is, at the time,
directly or indirectly owned by the Company and (B) any other partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
other entity (other than a corporation) (collectively, a "Person") in which the
Company, directly or indirectly, (i) owns a majority of the equity interest
thereof and (ii) has the power to elect or direct the election of a majority of
the members of the governing body of such Person or otherwise has control over
such Person (e.g., as the general or managing partner of a partnership. The term
"Covered Subsidiary" means XXX XXXX, Inc., NHI of Alabama, Ltd., NHI of Florida,
Ltd., NHI of Georgia, L.P., NHI of Kentucky, Ltd., NHI of Missouri, L.P., NHI of
South Carolina, L.P., NHI of Tennessee, L.P.
and NHI of Virginia, L.P.).
l. The Company is organized and operates in a manner so as to qualify
as a REIT under the Code; the Company elected to be taxed as a REIT commencing
with the Company's taxable year ended December 31, 1991 and will continue to so
elect.
m. Each Covered Subsidiary is duly organized, validly existing and in
good standing in the jurisdiction of its incorporation, if a corporation, and is
legally formed and validly existing under the laws of the jurisdiction of its
organization, if a partnership, association or business organization, with full
corporate or organizational power and authority to own, lease and operate its
properties and to conduct its business as presently conducted. Each Subsidiary
is duly registered and qualified to conduct its business (and, if a corporation,
is in good standing) in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not and
will not have a Material Adverse Effect; all the outstanding shares of capital
stock of each Covered Subsidiary that is a corporation have been duly authorized
and validly issued, are fully paid and nonassessable, and all ownership
interests in each Subsidiary that is not a corporation have been validly created
pursuant to the partnership or other agreements or organizational documents of
each such Subsidiary, and the shares or other interests owned by the Company are
owned by the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance.
n. There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or to which
any of their respective properties is subject, that are required to be disclosed
in the Registration Statement or the Prospectus but are not disclosed as
required, and there are no agreements, indentures, leases or other instruments
that are required to be disclosed in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement or any
Incorporated Document that are not disclosed or filed as required by the Act or
the Exchange Act.
o. Neither the Company nor any of the Subsidiaries is (i) in violation
of its certificate or articles of incorporation, by-laws, partnership
agreements, or other organizational documents, or (ii) in violation of any law,
ordinance, administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries, including any lending or banking law,
governmental rule or regulation, or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the Subsidiaries,
or (iii) in default in any material
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respect in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease, mortgage or other 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.
p. Neither the issuance and sale of the Notes, the execution, delivery
or performance of this Agreement or the Indenture by the Company nor the
consummation by the Company of the transactions contemplated hereby (i) requires
any consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration of
the Notes under the Act, the qualification of the Indenture under the 1939 Act
and compliance with the securities or Blue Sky laws of various jurisdictions,
all of which have been or will be effected in accordance with this Agreement) or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate or articles of incorporation, bylaws,
partnership agreements, or other organizational documents, of the Company or any
of the Subsidiaries or (ii) conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, any agreement, indenture,
lease, mortgage or other 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 violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Company or any of the Subsidiaries or any of their respective properties, or
will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of the Subsidiaries pursuant
to the terms of any agreement or instrument to which any of them is a party or
by which any of them may be bound or to which any of the property or assets of
any of them is subject.
q. The accountants, Xxxxxx Xxxxxxxx LLP, who have certified or shall
certify the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) are independent public accountants as required by the Act, the Exchange
Act and the respective rules and regulations thereunder.
r. The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are accurately presented and prepared
on a basis consistent with such financial statements and the books and records
of the Company and the Subsidiaries.
s. Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the capital
stock, or material increase in the short-term debt or long-term debt, of the
Company or any of the Subsidiaries, or any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operation of the
Company and the Subsidiaries taken as a whole.
t. The Company or the Subsidiaries has good and marketable title to
all of the property (real and personal) disclosed in the Prospectus as being
owned by them, free and clear of all liens, claims, security interests or other
encumbrances except such as are disclosed in the Registration Statement and the
Prospectus or in any other document previously made available to the Underwriter
or to its counsel or such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company or the Subsidiaries, and all the property disclosed
in the Prospectus as being held under lease by the Company and each
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of the Subsidiaries is held by it under valid, subsisting and enforceable
leases, free and clear of all liens, claims, security interests and other
encumbrances.
u. The Company and the Subsidiaries have title insurance or rights to
make a claim against another party on all real properties described in the
Prospectus as owned or leased by them (collectively, the "Properties"), in an
amount at least equal to the aggregate acquisition price paid by the Company or
the Subsidiaries for such Properties and the cost of construction of the
improvements located on such properties.
v. The Company and the Subsidiaries have title insurance or rights to
make a claim against another party on all real properties described in the
Prospectus as having been financed by them pursuant to a mortgage loan in an
amount at least equal to the aggregate principal amount of each such mortgage
loan.
w. The Company and each of the Subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits") as are necessary to own its respective properties and to conduct its
business as presently conducted and in the manner disclosed in the Prospectus,
including the necessary lending or banking law permits, subject to such
qualifications as may be set forth in the Prospectus; the Company and each of
the Subsidiaries has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus; and, except as disclosed in the Prospectus, none of such permits
contains any restriction that is materially burdensome to the Company or any of
the Subsidiaries.
x. The Company and the Subsidiaries maintain insurance of the types
and in amounts generally deemed adequate for their businesses, all of which
insurance is in full force and effect.
y. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances 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.
z. Neither the Company nor any of its Subsidiaries nor, to the knowledge
of the Company, any employee or agent of the Company or any Subsidiary has made
any payment of funds of the Company or any Subsidiary or received or retained
any funds in violation of any law, rule or regulation.
aa. The Company and each of the Subsidiaries have filed all tax returns
required to be filed, which returns are complete and correct, and neither the
Company nor any Subsidiary is in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect thereto.
bb. The Company is not now, and, after sale of the Notes to be sold by
the Company hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds," will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
cc. The Company and the Subsidiaries and, to the Company's knowledge,
the owner and operator of any property on which the Company or the Subsidiaries
holds a mortgage and the operator of any property owned by the Company or the
Subsidiaries (i) are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment, or hazardous or toxic substances or wastes,
pollutants or contaminants (as regulated by such laws and regulations)
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals under applicable Environmental Laws required in connection with their
businesses, properties or assets as conducted or contemplated to be conducted as
described in the Registration Statement, and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except where such
9
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a Material Adverse Effect.
dd. There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling, treatment, spill, discharge, leak,
emission, injection, dumping, or release of hazardous or toxic substances or
wastes, pollutants or contaminants by the Company or the Subsidiaries or, to the
knowledge of the Company, by any other person, at, to, or from any property
(including the Properties) now or previously owned or operated by the Company or
the Subsidiaries or now or previously subject to a mortgage held by the Company
or the Subsidiaries, except for any such storage, disposal, generation,
manufacture, refinement, transportation, handling, treatment, spill, discharge,
leak, emission, injection, dumping, or release which would not have, or could
not be reasonably likely to have singularly or in the aggregate, a Material
Adverse Effect; and, to the knowledge of the Company, there has been no spill,
discharge, leak, emission, injection, escape, dumping, or release at any other
location of any hazardous or toxic substances or wastes, pollutants or
contaminants generated at any property (including the Properties) now or
previously owned or operated by the Company or the Subsidiaries or now or
previously subject to a mortgage held by the Company or the Subsidiaries, except
for any such spill, discharge, leak, emission, injection, dumping, or release
which would not have, or could not be reasonably likely to have, singularly or
in the aggregate, a Material Adverse Effect.
ee. The Company has complied with all provisions of Florida Statutes,
ss. 517.075, relating to issuers doing business with Cuba.
ff.The Company has filed all reports and other documents required to
be filed by it under the Exchange Act.
gg. None of the assets of the Company or the Subsidiaries constitute,
nor will such assets, as of the Closing Date, constitute "plan assets," as such
term is defined in the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
hh. Subject to the provisions of applicable law, none of the
Subsidiaries is currently prohibited, directly or indirectly, from paying
dividends to the Company, from making any other distributions on such
Subsidiary's capital stock or from repaying to the Company any loans or advances
to such Subsidiary's property or assets to the Company.
ii.The information and disclosures regarding the Company's directors
and officers, contained in the Company's Proxy Statement for the Annual Meeting
of Stockholders held on March 20, 1997, (i) are accurate and consistent with the
information provided to the Company by each director and officer for that
purpose and (ii) did not omit to disclose any fact that should have been so
disclosed under the rules and regulations of the Exchange Act governing Proxy
Statement disclosure obligations.
7. INDEMNIFICATION AND CONTRIBUTION. a. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the agents, employees, officers and directors of the
Underwriter and each such controlling person, from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to the Underwriter furnished in writing to the Company by
or on behalf of the Underwriter expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph with
respect to any Prepricing Prospectus shall not inure to the benefit of the
Underwriter (or to the benefit of any person
10
controlling the Underwriter or any agent, employee, officer or director of the
Underwriter or such controlling person) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Notes by the
Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Prepricing
Prospectus was corrected in the Prospectus, provided that the Company has
delivered the Prospectus to the Underwriter in requisite quantity on a timely
basis to permit such delivery or sending. The foregoing indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
b. If any action, suit or proceeding shall be brought against any
person entitled to indemnification pursuant to the preceding paragraph in
respect of which indemnity may be sought against the Company pursuant to the
provisions of the preceding paragraph, such indemnified party shall promptly
notify the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel and payment of all reasonable fees and
expenses. Such indemnified party shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the Company has agreed in writing to pay such
fees and expenses, (ii) the Company has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such indemnified party and the
Company and such indemnified party shall have been advised by its counsel that
representation of such indemnified party and the Company by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed) due
to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such indemnified party). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such indemnified parties not having actual or
potential differing interests with you or among themselves, which firm shall be
designated in writing by Xxxxx Xxxxxx Inc., and that all such reasonable fees
and expenses shall be reimbursed as they are incurred. The Company shall not be
liable for any settlement (or for indemnification of the indemnified parties who
are parties to such settlement in respect of the subject matter of such
settlement) of any such action, suit or proceeding effected without its written
consent, which consent shall not be unreasonably withheld, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Company agrees to indemnify and hold
harmless, to the extent provided in the preceding paragraph, any indemnified
party from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
c. The Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement, 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 agents and employees of the Company and each
such controlling person, to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only with respect to information relating to the
Underwriter furnished in writing by or on behalf of the Underwriter expressly
for use in the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any such
officer, or any such controlling person, or any agent or employee of the Company
or any such controlling person, based on the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement thereto,
and in respect of which indemnity may be sought against the Underwriter pursuant
to this paragraph (c), the Underwriter shall have the rights and duties given to
the Company by paragraph (b) above (except that if the Company shall have
assumed the defense thereof the Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the Underwriter's expense),
and the Company, any of its directors, any such officer, and any such
controlling person, and any agents and employees of the Company and each such
controlling person shall have the rights and duties given to the Underwriter by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which the Underwriter may otherwise have.
11
d. If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter on the other hand from the offering of the
Notes, 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 the Underwriter on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear 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 of the Company on the one hand and the
Underwriter on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriter on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
e. The Company and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price of the Notes underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
f. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or 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 action, suit or proceeding.
g. Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any indemnified party, (ii) acceptance of
any Notes and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any indemnified party shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 7.
8. CONDITIONS OF UNDERWRITER'S OBLIGATION. The obligation of the
Underwriter to purchase the Notes hereunder are subject to the following
conditions:
a. If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
or an Additional Registration Statement to be declared effective before the
offering of the Notes may commence, the registration statement or such
post-effective amendment or Additional
12
Registration Statement shall have become effective not later than 5:30 P.M., New
York City time, on the date hereof, or at such later date and time as shall be
consented to in writing by you, and all filings, if any, required by Rules 424
and 430A under the Act shall have been timely made; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge of
the Company or the Underwriter, threatened by the Commission, and any request of
the Commission for additional information (to be included in the registration
statement or the prospectus or otherwise) shall have been complied with to your
satisfaction.
b. Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective change,
in or affecting the condition (financial or other), business, properties, net
worth, or results of operations of the Company or the Subsidiaries not
contemplated by the Prospectus, which in your reasonable opinion would
materially adversely affect the market for the Notes, or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company which makes any material statement made in the Prospectus untrue or
which, in the opinion of the Company and its counsel or you and your counsel,
requires the making of any addition to or change in the Prospectus in order to
state a material fact required by the Act or any other law to be stated therein
or necessary in order to make the statements therein not misleading, if amending
or supplementing the Prospectus to reflect such event or development would, in
your reasonable opinion, materially adversely affect the market for the Notes.
c. You shall have received on the Closing Date, an opinion of Xxxxxxx
Xxxxxx Xxxx Xxxxxxx & Manner P.C., counsel for the Company, dated the Closing
Date and addressed to you, to the effect that:
i. The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Maryland. Each of the
Company's Covered Subsidiaries is duly organized and validly existing and
in good standing in the jurisdiction of its incorporation, if a
corporation, and is legally formed and validly existing under the laws of
the jurisdiction of its organization, if a partnership, association or
business organization. The Company and the Covered Subsidiaries are duly
registered and qualified to transact business as foreign corporations or
limited partnerships and are in good standing under the laws of each
jurisdiction where the nature of its properties or the conduct of its
business requires such registration or qualification;
ii. The Company and the Covered Subsidiaries have the respective
corporate or organizational powers to own or lease their respective
properties and to conduct their respective businesses as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto);
iii. The issued shares of capital stock of each Covered Subsidiary
that is a corporation and all ownership interests in each Covered
Subsidiary that is not a corporation owned by the Company have been duly
authorized and validly issued, are fully paid and nonassessable and are
owned beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims;
iv. The Company has an authorized capitalization as set forth in the
Prospectus; and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable;
v. To the best knowledge of such counsel, no holders of securities
of the Company are entitled to have securities of the Company registered,
as a result of the filing of the Registration Statement or consummation of
the transactions contemplated by this Agreement, under the Act;
vi. The Company has corporate power to enter into this Agreement and
to carry out all the terms and provisions thereof to be carried out by it.
The execution and delivery of this Agreement has been duly and validly
authorized by all necessary corporate action of the Company and has been
duly executed and the Agreement constitutes the legal, valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by federal or state securities laws
or principles of public policy and subject to the qualification that the
enforceability of the
13
Company's obligations hereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors' rights generally and by general
equitable principles;
vii. The Indenture and the Second Supplemental Indenture thereto have
been duly qualified under the 1939 Act, duly and validly authorized by all
necessary corporate action of the Company and duly executed and delivered
by the Company, and assuming due execution and delivery by the Trustee,
constitute valid and legally binding instruments enforceable against the
Company in accordance with their terms, except as enforcement of rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws or principles of public policy and subject to the
qualification that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or
affecting creditors' rights generally and by general equitable principles,
and the Indenture conforms in all material respects to the description
thereof in the Registration Statement and the Prospectus;
viii. The Notes sold by the Company hereunder have been duly and
validly authorized and executed by the Company and, assuming due
authentication of the Notes by the Trustee in accordance with the
Indenture, upon delivery to the Underwriter against payment therefor in
accordance with the terms hereof, will have been validly issued and
delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights
generally and by general equitable principles, and the Notes conform in
all material respects to the description thereof in the Registration
Statement and the Prospectus;
ix. To the best knowledge of such counsel, no legal or governmental
proceedings are pending or threatened to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any of
the Subsidiaries is subject that are required to be described in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), and are not described therein; and, to the best knowledge of
such counsel, no agreement, indenture, lease or other material document is
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement thereto), or to be filed as an exhibit to
the Registration Statement or Incorporated Document that is not described
therein or filed as required;
x. The issuance, offering and sale of the Notes by the Company
pursuant to this Agreement, the compliance by the Company with the
provisions of this Agreement and the consummation of the transactions
contemplated in this Agreement (a) do not require the consent, approval,
authorization or other order of, registration or qualification of or with
any governmental authority or official (except such as have been obtained
under the Act, the 1939 Act, and such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of the
Notes) and (b) do not result in a breach or violation of any of the terms
or provisions of, or constitute a default under any statute, or any
judgment, decree, order, rule or regulation of any court or governmental
authority or any arbitrator to the best knowledge of such counsel that is
applicable to the Company or any of the Subsidiaries;
xi. The Registration Statement and all post-effective amendments, if
any, have become effective under the Act and, to the best knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
are pending before or contemplated by the Commission; and any required
filing of the Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b);
xii. The Company is not, and after the sale of the Notes and the
application of the net proceeds therefrom as disclosed in the Prospectus
under the caption "Use of Proceeds" will not be, required to be registered
under the 1940 Act; and
14
xiii. The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements and
the notes thereto and the schedules and other financial and statistical
data included and incorporated by reference therein and, with respect to
the Registration Statement, except for the Statement of Eligibility under
the 1939 Act of the Trustee, as to all of which such counsel need not only
express any opinion) comply as to form in all material respects with the
requirements of the Act;
In addition, such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, including review
and discussion of the contents thereof (including review and discussion of the
contents of all Incorporated Documents), and nothing has come to the attention
of such counsel that has caused them to believe that the Registration Statement
(including the Incorporated Documents), at the time the Registration Statement
became effective, 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 or that the Prospectus, as of its date and as
of the Closing Date, or that any amendment or supplement to the Prospectus, as
of its respective date, and as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in the Registration Statement or the Prospectus or
any Incorporated Document and, with respect to the Registration Statement, the
Statement of Eligibility under the 1939 Act of the Trustees under the Senior
Debt Notes Indenture and the Subordinated Debt Notes Indenture).
It is understood that such counsel is only admitted to practice in the
State of Tennessee. With respect to the foregoing opinions which relate to
Maryland law, such opinions are based solely upon such counsel's review of the
documents specified in a listing previously delivered to the Underwriter;
further such counsel may assume that the laws of the State of Maryland are
identical to the laws of the State of Tennessee.
d. You shall have received on the Closing Date, an opinion of Xxxxxxx,
Procter & Xxxx LLP, special tax counsel for the Company, dated the Closing
Date and addressed to you, to the effect that:
i. The discussions in the Prospectus and the Prospectus Supplement
under the captions "ERISA Considerations" are accurate in all material
respects;
ii. The Company was and is organized in conformity with the
requirements for qualification as a REIT and its method of operation, as
described in the Prospectus and Prospectus Supplement, permits it to meet
the requirements for qualification under the Code;
iii. The discussions in the Prospectus and the Prospectus Supplement
under the captions "Federal Income Tax Considerations" and "Certain Federal
Income Tax Considerations" are accurate in all material respects; and
iv. None of the Subsidiaries is a taxable entity separate from the
Company for Federal income tax purposes
e. You shall have received on the Closing Date, an opinion of Xxxxxxx
X. XxXxxxx, Xx., General Counsel of the Company, dated the Closing Date and
addressed to you, to the effect that:
i. No legal or governmental proceedings are pending or threatened to
which the Company or any of the Subsidiaries is or may be a party or to
which the property of the Company or any of the Subsidiaries is or may be
subject that are required to be described in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), and are not
described therein;
15
ii. No agreement, indenture, lease or other material document is
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement thereto), or to be filed as an exhibit to
the Registration Statement or Incorporated Document that is not described
therein or filed as required;
iii. The Company and each of the Covered Subsidiaries are duly
licensed or authorized in each jurisdiction where they are required to be
so licensed or authorized to conduct their respective businesses; the
Company and each of the Subsidiaries have all other necessary orders,
consents, approvals, permits, licenses, franchises and authorizations of
and from all regulatory authorities to conduct their respective businesses
as presently conducted, including the necessary lending or banking law
permits, and, to the best of such counsel's knowledge after due inquiry,
neither the Company nor any of the Subsidiaries has received any
notification from any regulatory authority to the effect that any
additional approval is required to be obtained by the Company or any of
the Subsidiaries;
iv. The issuance, offering and sale of the Notes by the Company
pursuant to this Agreement, the compliance by the Company with the other
provisions hereunder and the Indenture and the consummation of the
transactions contemplated herein and therein, do not conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease,
or other agreement or instrument to which the Company or any of the
Subsidiaries or any of their respective properties are bound, or the
charter documents or by-laws of the Company or any of the Subsidiaries, or
any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator and applicable to
the Company or any of the Subsidiaries;
v. Neither the Company nor any of the Subsidiaries is (i) in
violation of its respective certificate or articles of incorporation,
bylaws, partnership agreements, or other organizational documents; or (ii)
to the best knowledge of such counsel after reasonable inquiry, is (A) in
default in the performance of any material obligation, agreement or
condition contained in any bond, debenture, note or other evidence of
indebtedness or in any material agreement, indenture, lease, or other
instrument known to such counsel to which such person is a party or by
which any of them or their respective properties may be bound, or (B) in
violation of any law, ordinance, administrative or governmental rule or
regulation, including any lending or banking law, governmental rule or
regulation, applicable to the Company or any Subsidiary or of any decree
of any court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries;
vi. Each of the Incorporated Documents (except for the financial
statements and the notes thereto and the schedules and other financial and
statistical data included therein, as to which counsel need not express
any opinion), when filed, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and
vii. The Company has filed all reports and other documents required
to be filed by it under the Exchange Act; and when filed, such reports and
documents complied as to form in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder.
In addition, such counsel shall state that he has participated in the
preparation of the Registration Statement and the Prospectus, including review
and discussion of the contents thereof (including review and discussion of the
contents of all Incorporated Documents), and nothing has come to the attention
of such counsel that has caused him to believe that the Registration Statement
(including the Incorporated Documents), at the time the Registration Statement
became effective, 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 or that the Prospectus, as of its date and as
of the Closing Date, or that any amendment or supplement to the Prospectus, as
of its respective date, and as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements herein, in the light of the
circumstances under which they were or are made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in the Registration Statement or the
16
Prospectus or any Incorporated Document or with respect to the Statement of
Eligibility under the 1939 Act of the Trustee under the Indenture.
f. You shall have received on the Closing Date an opinion of Xxxxx
Xxxxxxxxxx, counsel for the Underwriter, dated the Closing Date and addressed to
you, with respect to the matters referred to in clauses (vi), (vii), (viii),
(xi) and (xiii) of the foregoing paragraph (c) and the last paragraph of the
foregoing paragraph (c), and such other related matters as you may request.
g. You shall have received letters addressed to you, dated the date
hereof and the Closing Date, from Xxxxxx Xxxxxxxx LLP, independent certified
public accountants, substantially in the forms heretofore approved by you.
h. (i) No stop order suspending the effectiveness of the Registration
Statement 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 at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock of the Company nor any material increase in the
short-term or long-term debt of the Company (other than in the ordinary course
of business) from that set forth or contemplated in the Registration Statement
or the Prospectus (or any amendment or supplement thereto); (iii) there shall
not have been, since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any material adverse change
in the condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries taken as a
whole; (iv) the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on and as of the date hereof and on
and as of the Closing Date as if made on and as of the Closing Date, and you
shall have received a certificate, dated the Closing Date and signed by the
chief executive officer and the chief financial officer of the Company (or such
other officers as are acceptable to you), to the effect set forth in this
Section 8(h) and in Sections 8(i) and 8(j) hereof.
i. There shall not have been any announcement by any "nationally
recognized statistical rating organization", as defined for purposes of Rule
436(g) under the Act, that (i) it is downgrading its rating assigned to any
class of securities of the Company, or (ii) it is reviewing its rating assigned
to any class of securities of the Company with a view to possible downgrading,
or with negative implications, or direction not determined.
j. The Company shall not have failed at or prior to the Closing Date
in any material respect to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it hereunder
at or prior to the Closing Date.
k. You shall have received a certificate dated the Closing Date signed
by the chief accounting officer of the Company substantially in the form
heretofore approved by you, respecting the Company's compliance with the
financial covenants contained in the credit agreements and certain other
agreements to which the Company is a party.
l. The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and counsel to the Underwriter.
Any certificate or document signed by any officer of the Company and
delivered to you or counsel to the Underwriter shall be deemed a representation
and warranty by the Company to the Underwriter as to the statements made
therein.
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9. EXPENSES. The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing (or reproduction), and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
each amendment or supplement to any of them, this Agreement, the Indenture and
the Statement of Eligibility and Qualification of the Trustee; (ii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Prepricing Prospectus, the Prospectus, the Incorporated
Documents, and all amendments or supplements to any of them, as may be
reasonably requested for use in connection with the offering and sale of the
Notes; (iii) the preparation, printing, authentication, issuance and delivery of
the Notes, including any stamp taxes in connection with the original issuance of
the Notes; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Notes; (v) the registration or qualification of the Notes for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriter relating to the preparation, printing (or
reproduction), and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vi) the filing fees and the
fees and expenses of counsel for the Underwriter in connection with any filings
required to be made with the National Association of Securities Dealers, Inc.;
(vii) the transportation and other expenses incurred by or on behalf of the
Company and its representatives in connection with presentations to prospective
purchasers of the Notes; (viii) the fees and expenses of the Trustee; (ix) the
fees and expenses associated with obtaining ratings for the Notes from
nationally recognized statistical rating organizations; (x) the fees and
expenses of the Company's accountants in excess of $5,000 (with the Underwriter
agreeing to pay the first $5,000 of such fees and expenses); and (xi) the fees
and expenses of counsel (including local and special counsel) for the Company.
In no event shall the Company be liable to the Underwriter for loss of
anticipated profits from transactions contemplated by this Agreement. The
Underwriter agrees to reimburse the Company for out-of-pocket expenses of up to
$50,000 incurred in connection with the sale of the Notes.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective: (i)
upon the execution and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto or an Additional
Registration Statement to be declared effective before the offering of the Notes
may commence, when notification of the effectiveness of the registration
statement or such post-effective amendment or Additional Registration Statement
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Company, by notifying you, or
by you, by notifying the Company.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriter to the Company by notice to the Company, if prior to the Closing
Date, (i) trading in the Common Stock of the Company shall be suspended or
subject to any restriction or limitation not in effect on the date of this
Agreement, (ii) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
state authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable or inadvisable to commence or continue the offering of
the Notes on the terms set forth on the cover page of the Prospectus or to
enforce contracts for the resale of the Notes by the Underwriter.
Notice of such termination may be given by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
18
12. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set forth in
the last paragraph on the cover page, the stabilization legend on the inside
cover page and the statements in the first and third paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriter as
such information is referred to in Sections 6(d) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxxx X. XxXxxxx Xx., Esq. with a copy to Xxxxxxx Xxxxxx Xxxx
Xxxxxxx & Manner, P.C., 1800 First American Center, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx Xxxx, Esq.; or (ii) if to you, in
care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Manager, Investment Banking Division, with a copy to Xxxxx
Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxxx X. Xxxxxx, Esq..
This Agreement has been and is made solely for the benefit of the
Underwriter, the Company, its directors and officers, and the other controlling
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Underwriter of any of the Notes in his status
as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and each of you.
Very truly yours,
NATIONAL HEALTH INVESTORS, INC.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. XxXxxxx, Xx.
Title: Vice President
Confirmed as of the date first
above mentioned.
By: XXXXX XXXXXX INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Managing Director
