8-K: Current report filing
Published on November 16, 2005
Execution
Copy
OMEGA
HEALTHCARE INVESTORS, INC.
4,500,000
Shares
Common,
Stock
($0.10
par value per Share)
UNDERWRITING
AGREEMENT
November
15, 2005
Execution Copy
Execution
Copy
UNDERWRITING
AGREEMENT
November
15, 2005
UBS
Securities LLC
Deutsche
Bank Securities Inc.
Banc
of
America Securities LLC
Legg
Mason Wood Walker, Incorporated
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
Omega
Healthcare Investors, Inc., a real estate investment trust organized under
the
laws of the State of Maryland (the "Company"),
proposes to issue and sell to the underwriters named in Schedule
A
annexed
hereto (the "Underwriters")
an
aggregate of 4,500,000 shares (the "Firm
Shares")
of
common stock, $0.10 par value per share (the "Common
Stock"),
of
the Company. In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriters the option to purchase from
the Company up to an additional 675,000 shares of Common Stock (the
"Additional
Shares").
The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the "Shares."
The
Shares are described in the Prospectus which is referred to below.
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 333-117655) on Form S-3 under the Act (the
"shelf
registration statement"),
including a prospectus relating to Common Stock, preferred stock, debt
securities and warrants for such securities of the Company, 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 shelf registration statement, as so amended, and any post-effective
amendments thereto, have been declared by the Commission to be effective under
the Act. Such shelf 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 base prospectus included in the shelf
registration statement, as so amended, describing the Shares and the offering
thereof, in such form as has been provided to or discussed with, and approved,
by the Underwriters.
The
term
"Registration
Statement"
as used
in this Agreement means the shelf registration statement, as amended at the
time
it became effective, and as further 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 Shares may commence, the term "Registration Statement" as used in this
Agreement means the Registration Statement as amended by said post-effective
amendment. If an abbreviated registration statement is prepared and filed with
the Commission in accordance with Rule 462(b) under the Act (an "Abbreviated
Registration Statement"),
the
term "Registration Statement" includes the Abbreviated Registration Statement.
The term "Base
Prospectus"
as used
in this Agreement means the prospectus dated August 27, 2004, as filed with
the
Commission, and included in the shelf registration statement. The term
"Prepricing
Prospectus"
as used
in this Agreement means the preliminary form of the Prospectus (as defined
herein) subject to completion, if any, used in connection with the offering
of
the Shares. The term "Prospectus
Supplement"
as used
in this Agreement means any final prospectus supplement specifically relating
to
the Shares, in the form 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 Base Prospectus together with the Prospectus
Supplement, except that if such Base 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 Base Prospectus as so amended or supplemented and as supplemented
by the Prospectus Supplement. Any reference in this Agreement to the shelf
registration statement, the Registration Statement, the Base 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 shelf
registration statement, the Registration Statement, the Base 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 shelf
registration statement, the Registration Statement, the Base 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 are incorporated by reference in the shelf registration
statement, the Registration Statement, the Base Prospectus, any Prepricing
Prospectus, any Prospectus Supplement, the Prospectus, or any amendment or
supplement thereto.
The
Company and the Underwriters agree as follows:
1. Sale
and Purchase.
Upon
the basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule
A
attached
hereto, subject to adjustment in accordance with Section 8 hereof, in each
case
at a purchase price of $11.21 per Firm Share. The Company is advised by you
that
the Underwriters intend to make a public offering of their respective portions
of the Firm Shares as soon after the effectiveness of this Agreement as in
your
judgment is advisable initially to offer the Firm Shares upon the terms set
forth in the Prospectus. You may from time to time increase or decrease the
public offering price after the initial public offering to such extent as you
may determine.
In
addition, the Company hereby grants to the several Underwriters the option
to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company, ratably in
accordance with the number of Firm Shares to be purchased by each of them,
all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at
a
purchase price of $11.21 per Additional Share. This option may be exercised
by
UBS Securities LLC. ("UBS")
on
behalf of the several Underwriters at any time and from time to time on or
before the thirtieth day following the date hereof, by written notice to the
Company. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised and the date and time when the
Additional Shares are to be delivered (any such date and time being herein
referred to as an "additional
time of purchase");
provided,
however,
that no
additional time of purchase shall be earlier than the time of purchase (as
defined below) nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the tenth business day
after
the date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as
the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule
A
hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8 hereof.
2. Payment
and Delivery.
Payment
of the purchase price for the Firm Shares shall be made to the Company by
Federal Funds wire transfer against delivery of the certificates for the Firm
Shares to you through the facilities of The Depository Trust Company
("DTC")
for
the respective accounts of the Underwriters. Such payment and delivery shall
be
made at 10:00 A.M., New York City time, on November 21, 2005 (unless another
time shall be agreed to by you and the Company or unless postponed in accordance
with the provisions of Section 8 hereof). The time at which such payment and
delivery are to be made is hereinafter sometimes called "the
time of purchase."
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall
specify.
Payment
of the purchase price for the Additional Shares shall be made to the Company
at
the additional time of purchase in the same manner and at the same office as
the
payment for the Firm Shares. Electronic transfer of the Additional Shares shall
be made to you at the additional time of purchase in such names and in such
denominations as you shall specify.
Deliveries
of the documents described in Section 6 hereof with respect to the purchase
of
the Shares shall be made at the offices of Skadden, Arps, Slate, Meagher &
Flom LLP at Four Times Square, New York, New York 10036, at 9:00 A.M., New
York
City time, on the date of the closing of the purchase of the Firm Shares or
the
Additional Shares, as the case may be.
3. Representations
and Warranties.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) the
Registration Statement has heretofore been declared effective under the Act;
no
stop order of the Commission preventing or suspending the use of the Base
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement or the
Prospectus, or the effectiveness of the Registration Statement, has been issued,
and no proceedings for such purpose have been instituted or, to the Company's
knowledge, are contemplated by the Commission; the Company is eligible to use
Form S-3 under the Act with respect to the Registration Statement, and the
conditions to the use of Form S-3 with respect to the Registration Statement
in
connection with the offering and sale of the Shares as contemplated hereby
have
been satisfied; the Registration Statement as of the date of this Agreement
meets, and the offering and sale of the Shares as contemplated hereby complies
with, the requirements of Rule 415 under the Act in all material respects.
The
Registration Statement complied when it became effective, complies and, at
the
time of purchase, any additional time of purchase and at any time at which
the
Prospectus is delivered in connection with any sale of Shares, will comply,
and
each of the Base Prospectus, each Pre-Pricing Prospectus, the Prospectus
Supplement and the Prospectus conformed as of their respective dates, conform
and, at the time of purchase, any additional time of purchase and any time
at
which the Prospectus is delivered in connection with any sale of Shares, will
conform in all material respects with the requirements of the Act (including
Rule 415 under the Act); any statutes, regulations, contracts, properties,
related party transactions or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed as exhibits
to
the Registration Statement or any Incorporated Document have been and will
be so
described or filed as required; the Registration Statement did not at the time
of effectiveness, does not and, at the time of purchase, any additional time
of
purchase and, at any time at which the Prospectus is delivered in connection
with any sale of Shares, will not contain an untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, and the Base Prospectus, each
Pre-Pricing Prospectus, the Prospectus Supplement and the Prospectus did not
as
of their respective dates, do not and, at the time of purchase, any additional
time of purchase and any time at which the Prospectus is delivered in connection
with any sale of Shares, will not contain an untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading; provided,
however,
that
the Company makes no warranty or representation with respect to any statement
contained in the Registration Statement or the Prospectus in reliance upon
and
in conformity with information concerning an Underwriter and furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use in the Registration Statement or the Prospectus; each Incorporated
Document, at the time such document was filed with the Commission, or if
amended, supplemented or superceded by the filing of a subsequent filing with
the Commission, as of the date of such subsequent filing, complied in all
material respects, with the requirements of the Act and the Exchange Act and
did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and the Company has not distributed and will not distribute
any
"prospectus" (within the meaning of the Act) or offering material in connection
with the offering or sale of the Shares other than the then most recent
Pre-Pricing Prospectus or the then most recent Prospectus Supplement, in each
case accompanied by the then most recent Base Prospectus;
(b) in
accordance with Rule 2710(b)(7)(C)(i) of the National Association of Securities
Dealers, Inc. (the "NASD"),
the
Shares have been registered with the Commission on Form S-3 under the Act
pursuant to the standards for such Form S-3 prior to October 21,
1992;
(c) as
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the section of the Registration Statement and
the
Prospectus entitled "Capitalization" and, as of the time of purchase and any
additional time of purchase, as the case may be, the Company shall have an
authorized and outstanding capitalization as set forth in the section of the
Registration Statement and the Prospectus entitled "Capitalization" (subject,
in
each case, to the issuance of shares of Common Stock upon exercise of stock
options and warrants disclosed as outstanding in the Registration Statement
and
the Prospectus and the grant of options under existing stock option plans
described in the Registration Statement and the Prospectus); all of the issued
and outstanding shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable, have been issued
in
compliance with all federal and state securities laws and were not issued in
violation of any preemptive right, resale right, right of first refusal or
similar right; no further approval or authority of the stockholders or the
Board
of Directors of the Company are required for the issuance and sale of the
Shares;
(d) the
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Maryland, with full corporate power
and
authority to acquire, own, lease and operate its properties, and to lease the
same to others, and to conduct its business as described in the Registration
Statement and the Prospectus, to execute and deliver this Agreement and to
issue, sell and deliver the Additional Shares as contemplated herein; and the
Company is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions, except
where the failure to be in compliance would not, individually or in the
aggregate, either (i) have a material adverse effect on the business,
properties, financial condition, results of operation or prospects of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole or (ii)
prevent consummation of the transactions contemplated hereby (the occurrence
of
such effect or such prevention described in the foregoing clauses (i) and (ii)
being herein referred to as a "Material
Adverse Effect");
(e) the
Company is duly qualified to do business as a foreign entity and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or
in
the aggregate, have a Material Adverse Effect;
(f) the
Company has no subsidiaries (as defined under the Act) other than those listed
in Schedule
B
annexed
hereto (collectively, the "Subsidiaries");
the
Company owns all of the issued and outstanding capital stock of each of the
Subsidiaries; other than the capital stock of the Subsidiaries, the Company
does
not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in
any
firm, partnership, joint venture, association or other entity; complete and
correct copies of the articles of incorporation and the bylaws of the Company
and all amendments thereto have been delivered to you, and, except as set forth
in the exhibits to the Registration Statement, no changes therein or to the
articles of incorporation and the bylaws of the Subsidiaries will be made on
or
after the date hereof or on or before the time of purchase or, if later, any
additional time of purchase; each Subsidiary has been duly incorporated and
is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power and authority
to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus; each Subsidiary is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure
to
be so qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; each Subsidiary is in compliance
in
all respects with the laws, orders, rules, regulations and directives issued
or
administered by such jurisdictions, except where the failure to be in compliance
would not, individually or in the aggregate, have a Material Adverse Effect;
all
of the outstanding shares of capital stock of each of the Subsidiaries have
been
duly authorized and validly issued, are fully paid and non-assessable and are
owned by the Company subject to no security interest, other material encumbrance
or adverse claims other than security interests, as disclosed in the Prospectus,
granted under the Company's existing senior credit facility; no options,
warrants or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiaries are outstanding; and the Company has
no
"significant subsidiary," as that term is defined in Rule 1-02(w) of Regulation
S-X under the Act, other than those listed in Exhibit 21 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 2004;
(g) the
Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights;
(h) the
capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement
and
the Prospectus, and the certificates for the Shares are in due and proper form
and the holders of the Shares will not be subject to personal liability by
reason of being such holders;
(i) this
Agreement has been duly authorized, executed and delivered by the
Company;
(j) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time
or
both would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a part
of
such indebtedness under) its (i) respective charter or bylaws, or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement
or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or
affected, or (iii) any federal, state, local or foreign law, regulation or
rule,
including, without limitation, the rules and regulations of the New York Stock
Exchange (the "NYSE"), or any decree, judgment or order applicable to the
Company or any of the Subsidiaries or any of their respective properties, except
in the case of clauses (ii) and (iii) above, such breaches, violations or
defaults as would not individually, or in the aggregate, have a Material Adverse
Effect; and the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the transactions
contemplated hereby (A) will neither conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event which
with
notice, lapse of time or both would result in any breach or violation of or
constitute a default under or give the holder of any indebtedness (or a person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a part of such indebtedness under) (1) the charter or
bylaws of the Company or any of the Subsidiaries, or (2) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which any
of
them or any of their respective properties may be bound or affected, or (3)
any
federal, state or local law, regulation or rule, including the rules and
regulations of the NYSE, or any decree, judgment or order applicable to the
Company or any of the Subsidiaries, except in the case of clauses (2) above,
such breaches, violations or defaults as would not individually, or in the
aggregate, have a Material Adverse Effect, nor (B) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any of the properties
(real and personal (including, without limitation, mortgage loans and unsecured
loans)) described in the Registration Statement or Prospectus as being owned
or
leased by the Company or any of the Subsidiaries (the
"Properties");
(k) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with the NYSE, or approval of the stockholders of the
Company, is required in connection with the issuance and sale of the Shares
or
the consummation by the Company of the transactions contemplated hereby other
than registration of the Shares under the Act, which has been effected, the
listing of the Shares on the NYSE, which has been effected and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or under the rules
and
regulations of the NASD;
(l) except
as
expressly set forth in the Registration Statement and the Prospectus, (i) no
person has the right, contractual or otherwise, to cause the Company to issue
or
sell to it any shares of Common Stock or shares of any other capital stock
or
other equity interests of the Company, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to purchase any shares
of
Common Stock or shares of any other capital stock of or other equity interests
in the Company and (iii) no person has the right to act as an underwriter or
as
a financial advisor to the Company in connection with the offer and sale of
the
Shares, whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or otherwise; no
person has the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital stock
of
or other equity interests in the Company, or to include any such shares or
interests in the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise;
(m) each
of
the Company and the Subsidiaries (and, to the Company's knowledge, each
operator, lessee or sublessee of any Property or portion thereof) (i) has all
necessary licenses, authorizations, consents and approvals and (ii) has made
all
necessary filings required under any federal, state, local or foreign law,
regulation or rule, and (iii) has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order to acquire
and own, lease or sublease, lease to others and conduct its respective business
as described in the Registration Statement or Prospectus, except in the case
of
clauses (i), (ii) and (iii) above, where the failure to have such items, make
such filings or obtain such items would not individually, or in the aggregate,
have a Material Adverse Effect; neither the Company nor any of the Subsidiaries
(nor, to the Company's knowledge, any such operator, lessee or sublessee) is
in
violation of, or in default under, or has received notice of any proceedings
relating to revocation or modification of, any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation
or
rule or any decree, order or judgment applicable to the Company or any of the
Subsidiaries, except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material Adverse
Effect;
(n) all
legal
or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and the
existence of, "variable interest entities" within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, leases or documents of a character required to be described in
the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document have been so described
or
filed as required;
(o) there
are
no actions, suits, claims, investigations or proceedings pending or, to the
knowledge of the Company, threatened or contemplated to which the Company or
any
of the Subsidiaries or any of their respective directors or officers (or, to
the
Company's knowledge, any person from whom the Company or any Subsidiary acquired
any of the Properties (each, a "seller"),
or
any lessee, sublessee or operator of any Property or any portion thereof) is
or
would be a party, or of which any of the respective properties or assets of
the
Company and the Subsidiaries, or any Property, is or would be subject at law
or
in equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, except any such action,
suit, claim, investigation or proceeding which would not result in a judgment,
decree or order having, individually or in the aggregate, a Material Adverse
Effect;
(p) Ernst
& Young LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants as required
by
the Act and by Rule 3600T of the Public Company Accounting Oversight
Board;
(q) the
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus, together with the related notes and schedules,
present fairly the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for the periods
specified and have been prepared in compliance with the requirements of the
Act
and Exchange Act and in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved; any pro forma
financial statements or data included or incorporated by reference in the
Registration Statement and the Prospectus comply with the requirements of
Regulation S-X of the Act and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements and
data; the other financial and statistical data set forth or incorporated by
reference in the Registration Statement and the Prospectus are accurately
presented in all material respects and prepared on a basis consistent with
the
financial statements and books and records of the Company; there are no
financial statements (historical or pro forma) that are required to be included
or incorporated by reference in the Registration Statement and the Prospectus
(including, without limitation, as required by Rules 3-12 or 3-05 or Article
11
of Regulation S-X under the Act) that are not included or incorporated by
reference as required; the Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance
sheet obligations or any "variable interest entities" within the meaning of
Financial Accounting Standards Board Interpretation No. 46), not disclosed
in
the Registration Statement and the Prospectus; and all disclosures contained
in
the Registration Statement or the Prospectus, including the documents
incorporated by reference therein, regarding "non-GAAP financial measures"
(as
such term is defined by the rules and regulations of the Commission) comply
with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act,
to
the extent applicable;
(r) subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been (i) any material adverse
change, or any development which could have a reasonable possibility of giving
rise to a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company and
the
Subsidiaries taken as a whole, (ii) any transaction which is material to the
Company and the Subsidiaries taken as a whole, (iii) any obligation, direct
or
contingent (including any off-balance sheet obligations), incurred by the
Company or any Subsidiary, which is material to the Company and the Subsidiaries
taken as a whole, (iv) any change in the capital stock (except as the result
of
the exercise of rights by directors and employees under the Company's stock
incentive plans described in the Prospectus) or outstanding indebtedness of
the
Company or any Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any
Subsidiary;
(s) the
Company has obtained for the benefit of the Underwriters the agreement (a
"Lock-Up
Agreement"),
in
the form set forth as Exhibit
A
hereto,
of each of its officers and directors;
(t) neither
the Company nor any Subsidiary is and, after giving effect to the offering
and
sale of the Shares, neither of them will be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act");
(u) the
Company, and each of the Subsidiaries, has insurable title, and, in the case
of
real property, in fee simple, to the Properties, free and clear of all liens,
claims, mortgages, deeds of trust, restrictions, security interests and other
encumbrances or defects ("Property
Encumbrances"),
except for (x) the leasehold interests of lessees in the Properties of the
Company and the Subsidiaries held under lease (the "Leases")
and
(y) any other Property Encumbrances that would not, individually or in the
aggregate, have a Material Adverse Effect; and all Property Encumbrances on
or
affecting the Properties which are required to be disclosed in the Prospectus
or
Registration Statement are disclosed therein as required;
(v) each
of
the Leases pertaining to the Properties has been duly authorized by the Company
or a Subsidiary, as applicable, and is a valid, subsisting and enforceable
agreement of the Company or such Subsidiary, as applicable, and, to the
knowledge of the Company, each other party thereto, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally or general equitable principles;
(w) no
person
has an option or right of first refusal to purchase all or any material portion
of the Property owned by the Company or any interest therein, and to the
Company's knowledge no such right exists with respect to any Property that
the
Company leases (as lessee), except for such options or rights of first refusal
which, if exercised, will not individually or in the aggregate have a Material
Adverse Effect;
(x) to
the
knowledge of the Company, except as disclosed in the Registration Statement
and
Prospectus, no lessee of any portion of any of the Properties is in default
under its respective lease, and there is no event which, with notice, lapse
of
time or both, would constitute a default under any such lease, except such
defaults that would not, individually or in the aggregate, have a Material
Adverse Effect;
(y) to
the
knowledge of the Company, except as disclosed in the Registration Statement
and
Prospectus, no borrower of a Company mortgage loan is in default under its
respective mortgage loan, and there is no event which, with notice, lapse of
time or both, would constitute a default under any such mortgage loan, except
such defaults that would not, individually or in the aggregate, have a Material
Adverse Effect;
(z) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information described
in
the Registration Statement or the Prospectus as being owned or licensed by
them
or which are necessary for the conduct of their respective businesses, except
where the failure to own, license or have such rights would not, individually
or
in the aggregate, have a Material Adverse Effect;
(aa) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice,
except as would not, individually or in the aggregate, have a Material Adverse
Effect; there has been no violation of any federal, state or local law relating
to discrimination in the hiring, promotion or pay of employees, any applicable
wage or hour laws or any provision of the Employee Retirement Income Security
Act of 1974 ("ERISA")
or the
rules and regulations promulgated thereunder concerning the employees of the
Company or any of the Subsidiaries, except as would not, individually or in
the
aggregate, have a Material Adverse Effect; there is no strike, labor dispute,
slowdown or work stoppage with the employees of the Company or any of the
Subsidiaries that is pending or, to the knowledge of the Company,
threatened;
(bb) the
Company and the Subsidiaries and their properties, assets and operations (and,
to the Company's knowledge, each operator, lessee or sublessee of any Property
or portion thereof) are in compliance with, and holds all permits,
authorizations and approvals required under, Environmental Laws (as defined
below), except to the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the aggregate, have
a
Material Adverse Effect; there are no past, present or, to the Company's
knowledge, reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the Company or
any
Subsidiary under, or to interfere with or prevent compliance by the Company
or
any Subsidiary with, Environmental Laws, except as would not, individually
or in
the aggregate, have a Material Adverse Effect; except as would not, individually
or in the aggregate, have a Material Adverse Effect, neither the Company nor
any
of the Subsidiaries, nor, to the Company's knowledge, any seller, lessee,
sublessee or operator of any Property or portion thereof or any previous owner
thereof, (i) is the subject of any investigation, (ii) has received any notice
or claim, (iii) is a party to or affected by any pending or threatened action,
suit or proceeding, (iv) is bound by any judgment, decree or order or (v) has
entered into any agreement, in each case relating to any alleged violation
of
any Environmental Law or any actual or alleged release or threatened release
or
cleanup at any location of any Hazardous Materials (as defined below); and
neither the Company nor any of the Subsidiaries, nor, to the Company's
knowledge, any seller, lessee, sublessee or operator of any Property or portion
thereof or any previous owner thereof, has received from any governmental
authority notice of any violation, concerning the Properties, of any municipal,
state or federal law, rule or regulation or of any Environmental Law, except
for
such violations as have heretofore been cured and except for such violations
as
would not, individually or in the aggregate, have a Material Adverse Effect
(as
used herein, "Environmental
Law"
means
any federal, state or local law, statute, ordinance, rule, regulation, order,
decree, judgment, injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the protection,
cleanup or restoration of the environment or natural resources, including those
relating to the distribution, processing, generation, treatment, storage,
disposal, transportation, other handling or release or threatened release of
Hazardous Materials, and "Hazardous
Materials"
means
any material (including, without limitation, pollutants, contaminants, hazardous
or toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
(cc) the
Company and the Subsidiaries have (A) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all applicable authorities, all self-regulatory
authorities and all courts and other tribunals (each, an "Authorization")
necessary to engage in the business conducted by it in the manner described
in
the Prospectus, except as would not, individually or in the aggregate, have
a
Material Adverse Effect and (B) no reason to believe that any governmental
body
or agency, domestic or foreign, is considering limiting, suspending or revoking
any such Authorization, except where any such limitations, suspensions or
revocations would not, individually or in the aggregate, have a Material Adverse
Effect; all such Authorizations are valid and in full force and effect and
the
Company and the Subsidiaries are in compliance with the terms and conditions
of
all such Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such Authorizations, except
for
any invalidity, failure to be in full force and effect or noncompliance with
any
Authorization that would not, individually or in the aggregate, have a Material
Adverse Effect;
(dd) neither
the Company nor any of the Subsidiaries, nor, to the Company's knowledge, any
seller, lessee, sublessee or operator of any Property or portion thereof, has
received from any governmental authority any written notice of any condemnation
of, or zoning change affecting, the Properties or any portion thereof, and
the
Company does not know of any such condemnation or zoning change which is
threatened, except for such condemnations or zoning changes that, if
consummated, would not, individually or in the aggregate, have a Material
Adverse Effect; and each of the Properties, and the current and intended use
and
occupancy thereof, complies with all applicable zoning laws, ordinances and
regulations, except where such failure does and will not, individually or in
the
aggregate, have a Material Adverse Effect;
(ee)
all tax
returns required to be filed by the Company or any of the Subsidiaries have
been
timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions
to
tax or penalties applicable thereto due or claimed to be due from such entities
have been timely paid, other than those being contested in good faith and for
which adequate reserves have been provided; and to the Company's knowledge,
there is no tax deficiency which has been asserted against the Company or any
Subsidiary, except any tax deficiency which would not, individually or in the
aggregate, have a Material Adverse Effect;
(ff) each
of
the Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amount as the Company
reasonably deems to be adequate and as are customary in the business in which
they are engaged, except as described in the Prospectus; except as would not,
individually, or in the aggregate, have a Material Adverse Effect, all policies
of insurance insuring the Company and the Subsidiaries or any of their
businesses, assets, employees, officers, directors and trustees are in full
force and effect, and the Company and the Subsidiaries are in compliance with
the terms of such policies in all material respects. Except as would not,
individually or in the aggregate, have a Material Adverse Effect, there are
no
claims by the Company or any of the Subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause;
(gg)
neither
the Company nor any of the Subsidiaries has sustained since the date of the
last
audited financial statements incorporated by reference in the Registration
Statement and the Prospectus any loss or interference with its respective
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, except for such loss or interference as would not individually,
or in
the aggregate, have a Material Adverse Effect;
(hh) neither
the Company nor any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the leases, contracts or
agreements referred to or described in, or filed as an exhibit to, the
Registration Statement or any Incorporated Document, and no such termination
or
non-renewal has been threatened by the Company or any Subsidiary or, to the
Company's knowledge after due inquiry, any other party to any such contract
or
agreement, except for such termination or non-renewal as would not individually,
or in the aggregate, have a Material Adverse Effect;
(ii) the
Company, and each of the Subsidiaries, maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific 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;
(jj) the
Company has established and maintains and evaluates "disclosure controls and
procedures" (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and "internal control over financial reporting" (as such term
is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company's Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company's auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (i) any significant deficiencies in the design
or
operation of internal controls which could adversely affect the Company's
ability to record, process, summarize, and report financial data; and (ii)
any
fraud, whether or not material, that involves management or other employees
who
have a role in the Company's internal controls; any material weaknesses in
internal controls have been identified for the Company's auditors; since the
date of the most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses; the
principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all certifications
required by the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley
Act")
and
any related rules and regulations promulgated by the Commission, and the
statements contained in any such certification are complete and correct; the
Company and the Subsidiaries are in compliance in all material respects with
all
applicable effective provisions of the Sarbanes-Oxley Act and the rules and
regulations of the Commission and the New York Stock Exchange promulgated
thereunder;
(kk)
the
Company has provided you true, correct and complete copies of all documentation
pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company or any Subsidiary to any director or
executive officer of the Company, or to any family member or affiliate of any
director or executive officer of the Company; and on or after July 30, 2002,
the
Company has not, directly or indirectly, including through any Subsidiary:
(i)
extended credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive officer
of
the Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (ii) made any material modification,
including any renewal thereof, to any term of any personal loan to any director
or executive officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on July 30,
2002;
(ll) all
statistical or market-related data included or incorporated by reference in
the
Registration Statement or the Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate in all material respects,
and the Company has obtained the written consent to the use of such data from
such sources to the extent required;
(mm) neither
the Company nor any of the Subsidiaries nor, to the Company's knowledge, 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, which payment, receipt or retention of funds
is
of a character required to be disclosed in the Registration Statement or the
Prospectus or any Incorporated Document;
(nn) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has
incurred any liability for any finder's or broker's fee or agent's commission
in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Prospectus;
(oo) from
and
including the Company's taxable year ended 1992, the Company has continuously
met, currently meets, and as of the time of purchase or additional time of
purchase, as the case may be, will meet, the requirements for, and its proposed
methods of operations as described in the Registration Statement or Prospectus
will permit the Company to continue to meet the requirements for, qualification
and taxation as a real estate investment trust ("REIT")
under
the Internal Revenue Code of 1986 (the "Code");
and
all statements in the Prospectus or Registration Statement regarding the
Company's qualification as a REIT are true, complete and correct in all material
respects;
(pp) neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected
to
cause or result in, under the Exchange Act or otherwise, the stabilization
or
manipulation of the price of any security of the Company to facilitate the
sale
or resale of the Shares; and
(qq) to
the
Company's knowledge, there are no affiliations or associations between any
member of the NASD and the Company or any of the Company's officers, directors
or 5% or greater securityholders, except as set forth in the Registration
Statement and the Prospectus.
Each
certificate signed by an officer of the Company and delivered to the
Underwriters or counsel for the Underwriters pursuant to this Agreement at
the
time of purchase or the additional time of purchase shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered by such certificate. The Company acknowledges that the Underwriters
and,
for purposes of the opinions to be delivered to the Underwriters pursuant to
Section 6 hereof, counsel to the Company and counsel to the Underwriters will
rely upon the accuracy and truth of the foregoing representations, and the
Company hereby consents to such reliance.
4. Certain
Covenants.
(i) The
Company hereby agrees:
(a) to
furnish such information as may be reasonably required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities
or
blue sky laws of such states or other jurisdictions as you may designate and
to
maintain such qualifications in effect so long as you may reasonably request
for
the distribution of the Shares; provided,
however,
that
the Company shall not be required to qualify as a foreign entity or to consent
to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and
to
promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding for
such
purpose;
(b) to
make
available to the Underwriters in New York City, as soon as practicable after
this Agreement becomes effective, and thereafter from time to time to furnish
to
the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration Statement)
as
the Underwriters may request for the purposes contemplated by the Act; in case
any Underwriter is required to deliver, in connection with the sale of the
Shares, a prospectus after the nine-month period referred to in Section 10(a)(3)
of the Act, or after the time a post-effective amendment to the Registration
Statement is required pursuant to Rule 415(a)(3) under the Act or Item 512(a)
of
Regulation S-K under the Act, the Company will prepare, at its expense, promptly
upon request such amendment or amendments to the Registration Statement and
the
Prospectus as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act or Rule 415(a)(3) under the Act or Item 512(a)
of
Regulation S-K under the Act, as the case may be;
(c) if,
at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or any post-effective amendment thereto to be declared
effective before the Shares may be sold, the Company will use its best efforts
to cause the Registration Statement or such post-effective amendment to become
effective as soon as possible, and the Company will advise you promptly and,
if
requested by you, will confirm such advice in writing, (i) when the Registration
Statement and any such post-effective amendment thereto has become effective,
and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act (which the Company agrees
to file in a timely manner in accordance with such Rules);
(d) on
a
confidential basis, to advise you promptly of any request by the Commission
for
amendments or supplements to the Registration Statement or the Prospectus or
for
additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the effectiveness
of
the Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as possible;
on a
confidential basis, to advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, including by filing
any
documents that would be incorporated therein by reference, and to provide you
and Underwriters' counsel copies of any such documents for review and comment
a
reasonable amount of time prior to any proposed filing and to file no such
amendment or supplement to which you shall reasonably object in
writing;
(e) to
file
promptly all reports and any preliminary or definitive proxy or information
statement required to be filed by the Company with the Commission in order
to
comply with the Exchange Act subsequent to the date of the Prospectus and for
so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Shares; and to provide you, on a confidential basis, with a
copy
of such reports and statements and other documents to be filed by the Company
pursuant to Section 13, 14 or 15(d) of the Exchange Act during such period
a
reasonable amount of time prior to any proposed filing, and to promptly notify
you of such filing;
(f) if
necessary or appropriate, to file a registration statement pursuant to Rule
462(b) under the Act and pay the applicable fees in accordance with the
Act;
(g) to
advise
the Underwriters promptly of the happening of any event within the time during
which a prospectus relating to the Shares is required to be delivered under
the
Act which would require the making of any change in the Prospectus then being
used so that the Prospectus would not include an untrue statement of material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not misleading,
and, during such time, subject to Section 4(d) hereof, to prepare and furnish,
at the Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change;
(h) to
make
generally available to its security holders, and to deliver to you, an earnings
statement of the Company (which will satisfy the provisions of Section 11(a)
of
the Act) covering a period of twelve months beginning after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Act) as
soon
as is reasonably practicable after the termination of such twelve-month period,
but in any case not later than March 1, 2007;
(i) to
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet and statements
of
operations, stockholders' equity and cash flow of the Company and the
Subsidiaries for such fiscal year, accompanied by a copy of the certificate
or
report thereon of nationally recognized independent certified public accountants
duly registered with the Public Company Oversight Accounting
Board);
(j) to
furnish to you five copies of the Registration Statement, as initially filed
with the Commission, and of all amendments thereto (including all exhibits
thereto and documents incorporated by reference therein) and sufficient copies
of the foregoing (other than exhibits) for distribution of a copy to each of
the
other Underwriters;
(k) to
furnish to you promptly and, upon request, to each of the other Underwriters
for
a period of three years from the date of this Agreement (i) copies of any
reports, proxy statements, or other communications which the Company shall
send
to its stockholders or shall from time to time publish or publicly disseminate,
(ii) copies of all annual, quarterly, transition and current reports filed
with
the Commission on Forms 10-K, 10-Q or 8-K, or such other similar forms as may
be
designated by the Commission, (iii) copies of documents or reports filed with
any national securities exchange on which any class of securities of the Company
is listed and (iv) such other information as you may reasonably request
regarding the Company or the Subsidiaries; provided, however, it is understood
and agreed that the Company shall have no obligation to furnish any of the
items
under this section (k) to the extent such items are available via the EDGAR
database;
(l) to
furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business
days prior thereto, a copy of the latest available unaudited interim and monthly
consolidated financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company's independent certified public accountants,
as stated in their letter to be furnished pursuant to Section 6(d)
hereof;
(m) to
apply
the net proceeds from the sale of the Shares sold by the Company in the manner
set forth under the caption "Use of proceeds" in the Prospectus;
(n) not
to
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any
option to purchase or otherwise dispose of or agree to dispose of, directly
or
indirectly, any Common Stock or securities convertible into or exchangeable
or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to
Common Stock, or file or cause to be declared effective a registration statement
under the Act relating to the offer and sale of any shares of Common Stock
or
securities convertible into or exercisable or exchangeable for Common Stock
or
warrants or other rights to purchase Common Stock or any other securities of
the
Company that are substantially similar to Common Stock for a period of 60 days
after the date hereof (the "Lock-Up
Period"),
without the prior written consent of UBS, except for (i) the registration of
the
Shares and the sales to the Underwriters pursuant to this Agreement, (ii)
issuances of Common Stock upon the exercise of options or warrants disclosed
as
outstanding in the Registration Statements and the Prospectus, (iii) the
issuance of shares pursuant to the terms and conditions of the Company's
dividend reinvestment and stock purchase plan, and (iv) the issuance of employee
stock options not exercisable during the Lock-Up Period pursuant to stock option
plans described in the Registration Statement and the Prospectus or the issuance
of restricted stock, stock awards or other equity incentives pursuant to the
Company's stock incentive plans described in the Registration Statement and
the
Prospectus provided that the recipients of such restricted stock, stock awards
or other equity incentives are restricted from selling such restricted stock,
stock awards or other equity incentives during the Lock-Up Period; provided,
however, if (1) during the period that begins on the date that is 15 calendar
days plus 3 business days before the last day of the 60-day restricted period
and ends on the last day of the 60-day restricted period, the Company issues
an
earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 60-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 60-day restricted period, the restrictions
imposed by this section shall continue to apply until the expiration of the
date
that is 15 calendar days plus 3 business days after the date on which the
issuance of the earnings release or the material news or material event occurs;
provided,
however,
this
paragraph will not apply if, within 3 days of the termination of the 60-day
restricted period, the Company delivers to UBS Securities LLC a certificate,
signed by the Chief Financial Officer or Chief Executive Officer of the Company,
certifying on behalf of the Company that the Company's shares of Common Stock
are, as of the date of delivery of such certificate, "actively traded
securities," as defined in Regulation M under the Exchange Act, 17 CFR
242.101(c)(1). Such notice shall be delivered in accordance with Section 11
of
this Agreement.
(o) prior
to
the time of purchase or any additional time of purchase, as the case may be,
to
issue no press release or other communication directly or indirectly and hold
no
press conferences with respect to the Company or any Subsidiary, the financial
condition, results of operations, business, properties, assets, or liabilities
of the Company or any Subsidiary, or the offering of the Shares, without your
prior consent, which shall not be unreasonably withheld;
(p) to
use
its best efforts to continue to qualify as a REIT under Sections 856 through
860
of the Code;
(q) to
use
its best efforts to cause the Common Stock to be listed on the New York Stock
Exchange and to maintain such listing; and
(r) to
maintain a transfer agent and, if necessary under the jurisdiction of
organization of the Company, a registrar for the Common Stock;
(s) to
pay
all costs, expenses, fees and taxes in connection with (a) the preparation
and
filing of the Registration Statement, the Base Prospectuses, each Pre-Pricing
Prospectus, each Prospectus Supplement, the Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each thereof
to the Underwriters and to dealers (including costs of mailing and shipment),
(b) the registration, issue, sale and delivery of the Shares including any
stock
or transfer taxes and stamp or similar duties payable upon the sale, issuance
or
delivery of the Shares to the Underwriters, (c) the producing, word processing
and/or printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements and any closing documents (including compilations thereof) and the
reproduction and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (d) the qualification of the Shares for offering and
sale
under state or foreign laws and the determination of their eligibility for
investment under state or foreign law as aforesaid (including the legal fees
and
filing fees and other disbursements of counsel for the Underwriters) and the
printing and furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (e) any listing of the Shares on
any
securities exchange or qualification of the Shares for quotation on the NASDAQ
and any registration thereof under the Exchange Act, (f) any filing for review
of the public offering of the Shares by the NASD, including the legal fees
and
filing fees and other disbursements of counsel to the Underwriters relating
to
NASD matters, (g) the fees and disbursements of any transfer agent or registrar
for the Shares, (h) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Shares to prospective investors and the Underwriters'
sales forces, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the officers of the Company and any
such
consultants, and the cost of any aircraft chartered in connection with the
road
show, and (i) the performance of the Company's other obligations
hereunder.
5. Reimbursement
of Underwriters' Expenses.
If the
Shares are not delivered for any reason other than the termination of this
Agreement pursuant to the fifth paragraph of Section 8 hereof or the default
by
one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall, in addition to paying the amounts described in
Section 4(s) hereof, reimburse the Underwriters for all of their out-of-pocket
expenses, including the fees and disbursements of their counsel.
6. Conditions
of Underwriters' Obligations.
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the representations and warranties on the part of the Company on the date
hereof, at the time of purchase and, if applicable, at the additional time
of
purchase, the performance by the Company of its obligations hereunder and to
the
following additional conditions precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion or opinions of Powell Goldstein LLP,
counsel for the Company, addressed to the Underwriters, and dated the time
of
purchase or the additional time of purchase, as the case may be, with executed
copies for each of the other Underwriters, and in the form agreed to by Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, prior to the
execution of this Agreement.
(b) You
shall
have received from Ernst & Young LLP letters dated, respectively, the date
of this Agreement, the time of purchase and, if applicable, the additional
time
of purchase, and addressed to the Underwriters (with executed copies for each
of
the Underwriters) in the forms approved by UBS.
(c) You
shall
have received at the time of purchase and, if applicable, at the additional
time
of purchase, the favorable opinion (which may provide for reliance, as to
Maryland law, on the opinion delivered under section 6(a) hereof) of Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, dated the
time of purchase or the additional time of purchase, as the case may be, in
form
and substance reasonably satisfactory to UBS.
(d) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall have been filed to which you object in writing.
(e) The
Registration Statement shall have become effective, and the Prospectus
Supplement shall have been filed with the Commission pursuant to Rule 424(b)
under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement, and any registration statement
pursuant to Rule 462(b) under the Act required in connection with the offering
and sale of the Shares shall have been filed and become effective no later
than
10:00 P.M., New York City time, on the date of this Agreement.
(f) Prior
to
the time of purchase, and, if applicable, the additional time of purchase,
(i)
no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section
8(d)
or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and (iii) the Prospectus and all amendments or
supplements thereto shall not contain an untrue statement of a material fact
or
omit to state a material fact required to be stated therein or necessary to
make
the statements therein, in the light of the circumstances under which they
are
made, not misleading.
(g) Between
the time of execution of this Agreement and the time of purchase or the
additional time of purchase, as the case may be, (A) no material adverse change
or any development involving a prospective material adverse change in the
business, properties, management, financial condition or results of operations
of the Company and the Subsidiaries taken as a whole shall occur or become
known
and (B) no transaction which is material and adverse to the Company has been
entered into by the Company or any of the Subsidiaries.
(h) The
Company will, at the time of purchase and, if applicable, at the additional
time
of purchase, deliver to you a certificate of its Chief Executive Officer and
its
Chief Financial Officer, dated the time of purchase or the additional time
of
purchase, as the case may be, in the form attached as Exhibit
B
hereto.
(i) The
Company will, at the time of purchase and, if applicable, at the additional
time
of purchase, deliver to you a certificate of its Chief Financial Officer, dated
the time of purchase or the additional time of purchase, as the case may be,
in
the form attached as Exhibit C hereto.
(j) You
shall
have received each of the signed Lock-Up Agreements referred to in Section
3(s)
hereof, and each such Lock-Up Agreement shall be in full force and effect at
the
time of purchase and the additional time of purchase, as the case may
be.
(k) The
Company shall have furnished to you such other documents and certificates as
to
the accuracy and completeness of any statement in the Registration Statement
and
the Prospectus as of the time of purchase and, if applicable, the additional
time of purchase, as you may reasonably request.
(l) The
Shares shall have been approved for listing on the New York Exchange, subject
only to notice of issuance at or prior to the time of purchase or the additional
time of purchase, as the case may be.
7. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
The
obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of UBS or any group of Underwriters
(which may include UBS) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if (x) since the time of execution of this Agreement
or
the earlier respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been any material adverse
change or any development involving a prospective material adverse change in
the
business, properties, management, financial condition or results of operations
of the Company and the Subsidiaries taken as a whole, which would, in UBS'
judgment or in the judgment of such group of Underwriters, make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares
on the terms and in the manner contemplated in the Registration Statement and
the Prospectus, or (y) since the time of execution of this Agreement, there
shall have occurred: (i) a suspension or material limitation in trading in
securities generally on the NYSE, the American Stock Exchange or the NASDAQ;
(ii) a suspension or material limitation in trading in the Company's securities
on the NYSE; (iii) a general moratorium on commercial banking activities
declared by either federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; (iv) an outbreak or escalation of hostilities or acts
of
terrorism involving the United States or a declaration by the United States
of a
national emergency or war; or (v) any other calamity or crisis or any change
in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in UBS' judgment
or in the judgment of such group of Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
on
the terms and in the manner contemplated in the Registration Statement and
the
Prospectus, or (z) since the time of execution of this Agreement, there shall
have occurred any downgrading, or any notice or announcement shall have been
given or made of (i) any intended or potential downgrading or (ii) any watch,
review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or any
Subsidiary by any "nationally recognized statistical rating organization,"
as
that term is defined in Rule 436(g)(2) under the Act.
If
UBS or
any group of Underwriters elects to terminate this Agreement as provided in
this
Section 7, the Company and each other Underwriter shall be notified promptly
in
writing.
If
the
sale to the Underwriters of the Shares, as contemplated by this Agreement,
is
not carried out by the Underwriters for any reason permitted under this
Agreement, or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall
not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(s), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase
in Underwriters' Commitments.
Subject
to Sections 6 and 7 hereof, if any Underwriter shall default in its obligation
to take up and pay for the Firm Shares to be purchased by it hereunder
(otherwise than for a failure of a condition set forth in Section 6 hereof
or a
reason sufficient to justify the termination of this Agreement under the
provisions of Section 7 hereof) and if the number of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and pay
for
does not exceed 10% of the total number of Firm Shares, the non-defaulting
Underwriters shall take up and pay for (in addition to the aggregate number
of
Firm Shares they are obligated to purchase pursuant to Section 1 hereof) the
number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and paid
for by such non-defaulting Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event
no
such designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number
of
Firm Shares set forth opposite the names of such non-defaulting Underwriters
in
Schedule
A.
Without
relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm
Shares hereunder unless all of the Firm Shares are purchased by the Underwriters
(or by substituted Underwriters selected by you with the approval of the Company
or selected by the Company with your approval).
If
a new
Underwriter or Underwriters are substituted by the Underwriters or by the
Company for a defaulting Underwriter or Underwriters in accordance with the
foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five business days in order that
any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The
term
"Underwriter" as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule
A
hereto.
If
the
aggregate number of Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the total number of Firm Shares which all
Underwriters agreed to purchase hereunder, and if the non-defaulting
Underwriters shall not make arrangements within the five business day period
stated above for the purchase of all the Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
terminate without further act or deed and without any liability on the part
of
the Company to any non-defaulting Underwriter and without any liability on
the
part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable cost
of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 9 being deemed
to include the Base Prospectus, any Pre-Pricing Prospectus, any Prospectus
Supplement or the Prospectus, as any of the foregoing may be amended or
supplemented by the Company), or arises out of or is based upon any omission
or
alleged omission to state a material fact required to be stated in either such
Registration Statement or such Prospectus or necessary to make the statements
made therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity
with
information concerning such Underwriter furnished in writing by or on behalf
of
such Underwriter through you to the Company expressly for use in, such
Registration Statement or such Prospectus or arises out of or is based upon
any
omission or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading, (ii) any untrue
statement or alleged untrue statement made by the Company in Section 3 hereof
or
the failure by the Company to perform when and as required any agreement or
covenant contained herein, or (iii) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual materials
provided by the Company or based upon written information furnished by or on
behalf of the Company, including, without limitation, slides, videos, films
or
tape recordings used in connection with the marketing of the
Shares.
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors and officers and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person
may
incur under the Act, the Exchange Act, the common law or otherwise, insofar
as
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with information concerning such Underwriter furnished
in
writing by or on behalf of such Underwriter through you to the Company expressly
for use in, the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement or such Prospectus or necessary to make
such information not misleading.
(c) If
any
action, suit or proceeding (each, a "Proceeding") is brought against any person
in respect of which indemnity may be sought pursuant to the foregoing paragraphs
(a), (b) and (c) of this Section 9, such person (the "indemnified
party")
shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying
party")
in
writing of the institution of such Proceeding and such indemnifying party shall
assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party) and payment of all fees
and
expenses; provided,
however,
that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which it may have to such indemnified
party or otherwise, except to the extent such delay has resulted in loss of
substantive rights or defenses. Such indemnified party shall have the right
to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless the employment
of such counsel shall have been authorized in writing by such indemnifying
party
in connection with the defense of such Proceeding or such indemnifying party
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded based on the advice of counsel
that there may be defenses available to it or them which are different from
or
additional to or in conflict with those available to such indemnifying party
(in
which case such indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties, but
such indemnifying party may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
such indemnifying party), in any of which events such fees and expenses shall
be
borne by such indemnifying party and paid as incurred (it being understood,
however, that such indemnifying party shall not be liable for the expenses
of
more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
indemnifying party shall be liable for any settlement of any such Proceeding
effected without the written consent of such indemnifying party but if settled
with the written consent of such indemnifying party, such indemnifying party
agrees to indemnify and hold harmless the indemnified party from and against
any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which
any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, liability or failure to act, by or on behalf of such indemnified
party.
(d) If
the
indemnification provided for in this Section 9 is unavailable to an indemnified
party under subsections (a) and (b) of this Section 9 or insufficient to hold
an
indemnified party harmless in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, damages, expenses, liabilities or claims (i) in
such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the
one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received
by
the Underwriters, bear to the aggregate public offering price of the Shares.
The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission
or
alleged omission relates to information supplied by the Company on the one
hand
or by the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably incurred
by
such party in connection with investigating, preparing to defend or defending
any Proceeding.
(e) The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above.Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered
to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
(f) The
indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors or officers
or
any person (including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, or by or on behalf of the Company, its directors or
officers or any person who controls the Company within the meaning of Section
15
of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The Company and
each Underwriter agree promptly to notify each other of the commencement of
any
Proceeding against it and, in the case of the Company, against any of the
Company's officers or directors in connection with the issuance and sale of
the
Shares, or in connection with the Registration Statement or the
Prospectus.
10. Information
Furnished by the Underwriters.
The
statements set forth under the caption "Underwriting--Commissions and Discounts"
and "Underwriting—Price Stabilization, Short Positions" in the Prospectus, only
insofar as such statements relate to the amount of selling concession and
reallowance or to over-allotment and stabilization activities that may be
undertaken by the Underwriters, constitute the only information furnished by
or
on behalf of the Underwriters as such information is referred to in Sections
3
and 9 hereof.
11. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities
LLC,
299 Park Avenue, New York, NY 10171-0026, Attention: Syndicate Department and,
if to the Company, shall be sufficient in all respects if delivered or sent
to
the Company at the offices of the Company at 9690 Deereco Road, Suite 100,
Timonium, Maryland 21093 Attention: C. Taylor Pickett, Chief Executive
Officer.
12. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
("Claim"),
directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of
this
Agreement.
13. Submission
to Jurisdiction.
Except
as set forth below, no Claim may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern
District of New York, which courts shall have jurisdiction over the adjudication
of such matters, and the Company consents to the jurisdiction of such courts
and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out
of
or in any way relating to this Agreement is brought by any third party against
any Underwriter or any indemnified party. Each Underwriter and the Company
(on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
in
any way arising out of or relating to this Agreement. The Company agrees that
a
final judgment in any such action, proceeding or counterclaim brought in any
such court following the exhaustion of all available appeals shall be conclusive
and binding upon the Company and may be enforced in any other courts to the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
14. Parties
at Interest.
The
Agreement herein set forth has been and is made solely for the benefit of the
Underwriters and the Company and, to the extent provided in Section 9 hereof,
the controlling persons, partners, directors and officers referred to in such
Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from
any
of the Underwriters) shall acquire or have any right under or by virtue of
this
Agreement.
15. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
16. Successors
and Assigns.
This
Agreement shall be binding upon the Underwriters and the Company and their
successors and assigns and any successor or assign of any substantial portion
of
the Company's and any of the Underwriters' respective businesses and/or
assets.
17. No
Fiduciary Duty.
The
Company hereby acknowledges that the Underwriters are acting solely as an
underwriter in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting
pursuant to a contractual relationship created solely by this Underwriting
Agreement entered into on an arm’s length basis and in no event do the parties
intend that the Underwriters act or be responsible as a fiduciary to the
Company, its management, stockholders, creditors or any other person in
connection with any activity that the Underwriters may undertake or has
undertaken in furtherance of the purchase and sale of the Company’s securities,
either before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to the Company, either in
connection with the transactions contemplated by this Underwriting Agreement
or
any matters leading up to such transactions, and the Company hereby confirms
its
understanding and agreement to that effect. The Company and the Underwriters
agree that they are each responsible for making their own independent judgments
with respect to any such transactions, and that any opinions or views expressed
by the Underwriters to the Company regarding such transactions, including but
not limited to any opinions or views with respect to the price or market for
the
Company’s securities, do not constitute advice or recommendations to the
Company. The Company hereby waives and releases, to the fullest extent permitted
by law, any claims that the Company may have against the Underwriters with
respect to any breach or alleged breach of any fiduciary or similar duty to
the
Company in connection with the transactions contemplated by this Underwriting
Agreement or any matters leading up to such transactions.
18. Miscellaneous.
UBS, an
indirect, wholly owned subsidiary of UBS AG, is not a bank and is separate
from
any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect
to
sales and purchases of securities. Securities sold, offered or recommended
by
UBS are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise
an
obligation or responsibility of a branch or agency.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
41
If
the
foregoing correctly sets forth the understanding between the Company and the
several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding
agreement between the Company and the Underwriters, severally.
Very
truly yours,
OMEGA
HEALTHCARE INVESTORS, INC.
By: /s/Robert
O. Stephenson
Name:
Robert O. Stephenson
Title:
Chief Financial Officer
Accepted
and agreed to as of the date
first
above written:
UBS
SECURITIES LLC
DEUTSCHE
BANK SECURITIES INC.
BANC
OF
AMERICA SECURITIES LLC
LEGG
MASON WOOD WALKER, INCORPORATED
By:
UBS
SECURITIES LLC
By:/s/
Jon Santemma
Name:
Jon
Santemma
Title:
Managing Director
Name:
/s/
Christian Hilliard
Name:
Christian Hilliard
Title:
Associate Director
SCHEDULE
A
|
Underwriter
|
Number
of Firm Shares
|
|
UBS
SECURITIES LLC
|
1,800,000
|
|
DEUTSCHE
BANK SECURITIES INC
|
900,000
|
|
BANC
OF AMERICA SECURITIES LLC
|
900,000
|
|
LEGG
MASON WOOD WALKER, INCORPORATED
|
900,000
|
|
Total
|
4,500,000
|
SCHEDULE
B
Subsidiaries
|
Subsidiary
Name
|
State
of
Incorporation
|
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Arizona
Lessor - Infinia, Inc.
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Maryland
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Baldwin
Health Center, Inc.
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Pennsylvania
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Bayside
Alabama Healthcare Second, Inc.
|
Alabama
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Bayside
Arizona Healthcare Associates, Inc.
|
Arizona
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Bayside
Arizona Healthcare Second, Inc.
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Arizona
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Bayside
Colorado Healthcare Associates, Inc.
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Colorado
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Bayside
Colorado Healthcare Second, Inc.
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Colorado
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Bayside
Indiana Healthcare Associates, Inc.
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Indiana
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Bayside
Street II, Inc.
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Delaware
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Bayside
Street, Inc.
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Maryland
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Canton
Health Care Land, Inc.
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Ohio
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Center
Healthcare Associates, Inc.
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Texas
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Cherry
Street - Skilled Nursing, Inc.
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Texas
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Colonial
Gardens, LLC
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Ohio
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Colorado
Lessor - Conifer, Inc.
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Maryland
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Copely
Health Center, Inc.
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Ohio
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Dallas
Skilled Nursing, Inc.
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Texas
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Delta
Investors I, LLC
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Maryland
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Delta
Investors II, LLC
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Maryland
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Dixon
Health Care Center, Inc.
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Ohio
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Florida
Lessor - Crystal Springs, Inc.
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Maryland
|
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Florida
Lessor - Emerald, Inc.
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Maryland
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Florida
Lessor - Lakeland, Inc.
|
Maryland
|
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Florida
Lessor - Meadowview, Inc.
|
Maryland
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Florida
Lessor - West Palm Beach and Southpoint, Inc.
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Maryland
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Georgia
Lessor - Bonterra/Parkview, Inc.
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Maryland
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Hanover
House, Inc.
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Ohio
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Heritage
Texarkana Healthcare Associates, Inc.
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Texas
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House
of Hanover, Ltd.
|
Ohio
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Hutton
I Land, Inc.
|
Ohio
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Hutton
II Land, Inc.
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Ohio
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Hutton
III Land, Inc.
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Ohio
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Indiana
Lessor - Jeffersonville, Inc.
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Maryland
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Indiana
Lessor - Wellington Manor, Inc.
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Maryland
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Jefferson
Clark, Inc.
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Maryland
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Lake
Park Skilled Nursing, Inc.
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Texas
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Leatherman
90-1, Inc.
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Ohio
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Leatherman
Partnership 89-1, Inc.
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Ohio
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Leatherman
Partnership 89-2, Inc.
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Ohio
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Long
Term Care - Michigan, Inc.
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Michigan
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Long
Term Care - North Carolina, Inc.
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North
Carolina
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Long
Term Care Associates - Illinois, Inc.
|
Illinois
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|
Long
Term Care Associates - Indiana, Inc.
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Indiana
|
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Long
Term Care Associates - Texas, Inc.
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Texas
|
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Meridian
Arms Land, Inc.
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Ohio
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NRS
Ventures, LLC
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Kentucky
|
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OHI
(Connecticut), Inc.
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Connecticut
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OHI
(Florida), Inc.
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Florida
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OHI
(Illinois), Inc.
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Illinois
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|
OHI
(Indiana), Inc.
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Indiana
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OHI
(Iowa), Inc.
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Iowa
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OHI
(Kansas), Inc.
|
Kansas
|
|
OHI
Asset (CA), LLC
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Delaware
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OHI
Asset (FL), LLC
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Delaware
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OHI
Asset (ID), LLC
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Delaware
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OHI
Asset (IN), LLC
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Delaware
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OHI
Asset (LA), LLC
|
Delaware
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OHI
Asset (MI/NC), LLC
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Delaware
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OHI
Asset (MO), LLC
|
Delaware
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OHI
Asset (OH) Lender, LLC
|
Delaware
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OHI
Asset (OH) New Philadelphia, LLC
|
Delaware
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OHI
Asset (OH), LLC
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Delaware
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OHI
Asset (PA) Trust
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Maryland
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OHI
Asset II (PA) Trust
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Maryland
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OHI
Asset III (PA) Trust
|
Maryland
|
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OHI
Asset (PA), LLC (f/k/a OHI Asset (FL) Tarpon Springs, Pinellas Park
&
Gainesville, LLC)
|
Delaware
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OHI
Asset (TX), LLC
|
Delaware
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OHI
Asset II (CA), LLC
|
Delaware
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OHI
Asset II (TX), LLC
|
Delaware
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OHI
Asset, LLC
|
Delaware
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OHI
of Kentucky, Inc.
|
Maryland
|
|
OHI
of Texas, Inc.
|
Maryland
|
|
OHI
Sunshine, Inc.
|
Florida
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OHIMA,
Inc.
|
Massachusetts
|
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Omega
(Kansas), Inc.
|
Kansas
|
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Omega
Acquisition Facility I, LLC
|
Delaware
|
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Omega
TRS I, Inc.
|
Maryland
|
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Orange
Village Care Center, Inc.
|
Ohio
|
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OS
Leasing Company
|
Kentucky
|
|
Parkview
- Skilled Nursing, Inc.
|
Texas
|
|
Pavillion
North, LLP (d/b/a Wexford House Nursing Center
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Pennsylvania
|
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Pavillion
North Partners, Inc.
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Pennsylania
|
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Pavillion
Nursing Center North, Inc.
|
Pennsylvania
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Pine
Texarkana Healthcare Associates, Inc.
|
Texas
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Reunion
Texarkana Healthcare Associates, Inc.
|
Texas
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San
Augustine Healthcare Associates, Inc.
|
Texas
|
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Skilled
Nursing - Gaston, Inc.
|
Indiana
|
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Skilled
Nursing - Herrin, Inc.
|
Illinois
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Skilled
Nursing - Hicksville, Inc.
|
Ohio
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Skilled
Nursing - Paris, Inc.
|
Illinois
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South
Athens Healthcare Associates, Inc.
|
Texas
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St.
Mary’s Properties, Inc.
|
Ohio
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Sterling
Acquisition Corp.
|
Kentucky
|
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Sterling
Acquisition Corp. II
|
Kentucky
|
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The
Suburban Pavilion, Inc.
|
Ohio
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Texas
Lessor - Stonegate GP, Inc.
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Maryland
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Texas
Lessor - Stonegate Limited, Inc.
|
Maryland
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Texas
Lessor - Stonegate, L.P.
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Maryland
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Texas
Lessor - Treemont, Inc.
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Maryland
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Washington
Lessor - Silverdale, Inc.
|
Maryland
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Waxahachie
Healthcare Associates, Inc.
|
Texas
|
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West
Athens Healthcare Associates, Inc.
|
Texas
|
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Wilcare,
LLC
|
Ohio
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EXHIBIT
A
Lock-Up
Agreement
November
__, 2005
UBS
Securities LLC
Deutsche
Bank Securities Inc.
Banc
of
America Securities LLC
Legg
Mason Wood Walker, Incorporated
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
This
Lock-Up Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting
Agreement")
to be
entered into by and between Omega Healthcare Investors, Inc., a Maryland real
estate investment trust (the "Company"), and you, as Representatives of the
several Underwriters named therein, with respect to the public offering (the
"Offering")
of
common stock, par value $0.10 per share, of the Company (the "Common
Stock").
In
order
to induce you to enter into the Underwriting Agreement, the undersigned agrees
that, for a period (the "Lock-Up
Period")
beginning on the date hereof and ending on the date that is 60 (days after
the
date of the final prospectus supplement relating to the Offering, the
undersigned will not, without the prior written consent of UBS Securities LLC,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (the "Commission")
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended (the "Act"),
and
the rules and regulations of the Commission promulgated thereunder with respect
to, any Common Stock, or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock, whether
any
such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (ii) publicly announce an intention to
effect any transaction specified in clause (i) or (ii) (each, a "Disposition").
The
foregoing sentence shall not apply to (a) bona fide gifts, provided the
recipient thereof agrees in writing with the Underwriters to be bound by the
terms of this Lock-Up Agreement, (b) dispositions to any trust for the direct
or
indirect benefit of the undersigned and/or the immediate family of the
undersigned, provided that such trust agrees in writing with the Underwriters
to
be bound by the terms of this Lock-Up Agreement, (c) exercises of stock options
("Options")
granted pursuant to the Company's existing stock incentive plans, as well as
Dispositions of Common Stock (whether issuable upon the exercise of Options
or
previously acquired) to the Company for the purpose of funding the exercise
of
Options or the associated tax withholding obligations, (d) dispositions of
Common Stock to the Company solely for the purpose of funding and satisfying
tax
withholding obligations that may arise in connection with the vesting of
previously awarded shares of restricted Common Stock, or (e) the establishment
of a plan pursuant to Rule 10b5-1 under the Act that does not provide for or
permit Dispositions during the Restricted Period.
In
addition, if (1) during the period that begins on the date that is 15 calendar
days plus 3 business days before the last day of the 60-day restricted period
and ends on the last day of the 60-day restricted period, the Company issues
an
earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 60-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 60-clay restricted period, the restrictions
imposed by this letter shall continue to apply until the expiration of the
date
that is 15 calendar days plus 3 business clays after the date on which the
issuance of the earnings release or the material news or material event occurs;
provided, however, this paragraph will not apply if, within 3 days of the
termination of the 60-day restricted period, the Company delivers to UBS
Securities LLC a certificate, signed by the Chief Financial Officer or Chief
Executive Officer of the Company, certifying on behalf of the Company that
the
Company's shares of Common Stock are, as of the date of delivery of such
certificate, "actively traded securities," as defined in Regulation M under
the
Exchange Act, 17 CUR 242.101(c)(1). Such notice shall be delivered in accordance
with Section 11 of the Underwriting Agreement.
In
addition, the undersigned hereby waives any rights the undersigned may have
to
require registration of Common Stock in connection with the filing of a
registration statement relating to the Offering. The undersigned further agrees
that, for the Lock-Up Period, the undersigned will not, without the prior
written consent of UBS Securities LLC, make any demand for, or exercise any
right with respect to, the registration of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock.
If
(i)
the Company notifies you in writing that it does not intend to proceed with
the
Offering, (ii) the registration statement filed with the Commission with respect
to the Offering is withdrawn or (iii) for any reason the Underwriting Agreement
shall be terminated prior to the "time of purchase" (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
Yours
very truly,
Name:
EXHIBIT
B
OFFICERS'
CERTIFICATE
Each
of
the undersigned, C. Taylor Pickett, Chief Executive Officer of Omega Healthcare
Investors, Inc., a Maryland corporation (the "Company"),
and
Robert O. Stephenson, Chief Financial Officer of the Company, on behalf of
the
Company, does hereby certify pursuant to Section 6(h) of that certain
Underwriting Agreement dated November 15, 2005 (the "Underwriting
Agreement")
between the Company and UBS Securities LLC, Deutsche Bank Securities Inc.,
Banc
of America Securities LLC and Legg Mason Wood Walker, Incorporated, that as
of
November 21, 2005:
| 1. |
He
has reviewed the Registration Statement and the
Prospectus.
|
| 2. |
The
representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
| 3. |
The
Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date
hereof.
|
| 4. |
The
conditions set forth in paragraphs (h) and (i) of Section 6 of the
Underwriting Agreement have been
met.
|
| 5. |
The
financial statements and other financial information included or
incorporated by reference in the Registration Statement or the Prospectus
fairly present in all material respects the financial condition,
results
of operations and cash flows of the Company and the Subsidiaries
as of,
and for, the periods therein
presented.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
IN
WITNESS WHEREOF, the undersigned have hereunto set their hands on this November
21, 2005.
Name:
C.
Taylor Pickett
Title:
Chief Executive Officer
Name:
Robert O. Stephenson
Title:
Chief Financial Officer
EXHIBIT
C
CHIEF
FINANCIAL OFFICERS' CERTIFICATE
The
undersigned, Robert O. Stephenson, Chief Financial Officer of Omega Healthcare
Investors, Inc., a Maryland corporation (the "Company"),
on
behalf of the Company, does hereby certify pursuant to Section 6(i) of that
certain Underwriting Agreement dated November 15, 2005 (the "Underwriting
Agreement")
between the Company and UBS Securities LLC, Deutsche Bank Securities Inc.,
Banc
of America Securities LLC and Legg Mason Wood Walker, Incorporated, that as
of
November 21, 2005;
1. I
am
familiar with the terms of (i) the Credit Agreement, dated as of March 22,
2004
and as amended on June 18, 2004, November 5, 2004, December 2, 2004 and April
26, 2005, by and among the Company, Bank of America, N.A., Banc of America
Securities LLC, Deutsche Bank Trust Company Americas, UBS Securities LLC and
General Electric Capital Corporation, and certain of the Company's Subsidiaries;
(ii) the Company's 7% Notes due 2014; (iii) the Company's 6.95% Notes due 2007;
(iv) the Company's Series D Preferred Stock; and (v) and other agreements
relating to the indebtedness of the Company and/or its Subsidiaries outstanding
on the date hereof (each as may be amended as of the date hereof, collectively,
and together with the previously mentioned agreement, the "Agreements").
For
the purpose of this certificate, I have reviewed in particular the covenants
contained in the Agreements, including those which require the maintenance
of
certain financial ratios or similar requirements by the Company and/or which
prohibit the incurring of debt by the Company under various
circumstances.
| 2. |
On
the date hereof, there exists no event of default or event which
with
notice or lapse of time or both would constitute an event of default
under
the Agreements.
|
| 3. |
The
issuance by the Company of any Additional Shares pursuant to the
Underwriting Agreement will not result in an event of default or
event
which with notice or lapse of time or both would constitute an event
of
default under the Agreements.
|
| 4. |
Without
limiting the generality of the foregoing, for the purposes of this
certificate, I have made or caused to be made the computations as
of
September 30, 2005, of certain financial ratios under the Agreements,
which were utilized in order to make the statements contained
herein.
|
| 5. |
I
am sufficiently familiar with the financial affairs of the Company
by
reason of my present position with the Company to make the statements
contained in this certificate, which are based upon the financial
statements of the Company and its Subsidiaries as of and for the
period
ended September 30, 2005 and other written statements, summaries,
tabulations and computations which I believe to be accurate and reliable,
made and furnished to me by employees of the Company in the regular
course
of their duty. I am also sufficiently familiar with the present financial
condition and operating results of the Company and its Subsidiaries
that
any material changes in the facts underlying the data relied upon
by me in
making this certificate occurring since the respective dates of such
data
would have come to my attention prior to the date hereof in the regular
course of business.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
IN
WITNESS WHEREOF, the undersigned has hereunto set his hands on this November
21,
2005.
Name:
Robert O. Stephenson
Title:
Chief Financial Officer