8-K: Current report filing
Published on December 2, 2005
$50,000,000
7%
Senior Notes due 2014
PURCHASE
AGREEMENT
November
28, 2005
DEUTSCHE
BANK SECURITIES INC.
BANC
OF
AMERICA SECURITIES LLC
UBS
SECURITIES LLC
|
c/o
|
Deutsche
Bank Securities Inc.
|
60
Wall
Street
New
York,
New York 10005
Ladies
and Gentlemen:
Omega
Healthcare Investors, Inc., a Maryland corporation (the “Company”),
and
the Company’s subsidiaries listed on the signature pages hereto (the
“Subsidiary
Guarantors”),
hereby confirm their agreement with you (the “Initial
Purchasers”),
as
set forth below.
Section
1 The
Securities.
Subject
to the terms and conditions herein contained, the Company proposes to issue
and
sell to the Initial Purchasers $50,000,000 aggregate principal amount of
its 7%
Senior Notes due 2014 (the “Notes”).
The
Notes will be unconditionally guaranteed (the “Guarantees”)
on a
senior basis by the Subsidiary Guarantors. The Notes and the Guarantees are
collectively referred to herein as the “Securities.”
The
Securities are to be issued under an indenture (the “Indenture”)
dated
as of March 22,
2004
by and
among the Company, the Subsidiary Guarantors and U.S. Bank National Association,
as Trustee (the “Trustee”),
as
amended by the First Supplemental Indenture dated as of July 20, 2004, the
Second Supplemental Indenture dated as of November 5, 2004 and the Third
Supplemental Indenture to be dated on or prior to the Closing Date.
The
Securities will be offered and sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the “Act”),
in
reliance on exemptions therefrom.
In
connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum dated November
28, 2005
(the
“Preliminary
Memorandum”)
and a
final offering memorandum dated November 28,
2005
(the
“Final
Memorandum”;
the
Preliminary Memorandum and the Final Memorandum each herein being referred
to as
a “Memorandum”)
setting forth or including a description of the terms of the Securities,
the
terms of the offering of the Securities, a description of the Company and
any
material developments relating to the Company occurring after the date of
the
most recent historical financial statements included therein. Any reference
herein to the Preliminary Memorandum or the Final Memorandum shall be deemed
to
refer to and include the documents incorporated by reference
therein.
The
Initial Purchasers and their direct and indirect transferees of the Securities
will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A
(the
“Registration
Rights Agreement”),
pursuant to which the Company and the Subsidiary Guarantors have agreed,
among
other things, to use their best efforts to file a registration statement
(the
“Registration
Statement”)
with
the Securities and Exchange Commission (the “Commission”)
registering the Securities or the Exchange Notes (as defined in the Registration
Rights Agreement) under the Act.
Section
2 Representations
and Warranties.
The
Company represents and warrants to and agrees with the Initial Purchasers
with
respect to itself and jointly with each Subsidiary Guarantor with respect
to
such Subsidiary Guarantor and each of the Subsidiary Guarantors represents
and
warrants to, severally with respect to itself, and agrees with the Initial
Purchasers as follows:
(a) Neither
the Preliminary Memorandum as of the date thereof nor the Final Memorandum
nor
any amendment or supplement thereto as of the date thereof and at all times
subsequent thereto up to the Closing Date (as defined in Section 3
below)
contained or contains any untrue statement of a material fact or omitted
or
omits to state a material fact necessary to make the statements therein,
in the
light of the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 2(a)
do
not apply to statements or omissions made in reliance upon and in conformity
with information relating to the Initial Purchasers furnished to the Company
in
writing by the Initial Purchasers expressly for use in any Memorandum (or
any
amendment or supplement thereto).
(b) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in either the Preliminary Memorandum or the Final
Memorandum (or any amendment or supplement thereto) complied or will comply
when
so filed in all material respects with the Exchange Act and the applicable
rules
and regulations thereunder.
(c) As
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the section of the Final Memorandum entitled
“Capitalization” and, as of the Closing Date, the Company shall have an
authorized and outstanding capitalization as set forth in the “Pro forma As
Adjusted” column of the section of the Final Memorandum entitled
“Capitalization” (subject to the issuance of shares of Common Stock upon
exercise of stock options and warrants disclosed as outstanding in the Final
Memorandum and the grant of options under existing stock option plans described
in the Final Memorandum and
any
shares issued pursuant to the Company’s dividend reinvestment and common stock
purchase plan).
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.
(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 Final
Memorandum, to execute and deliver this Agreement and to issue, sell and
deliver
the Notes as contemplated herein. 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
2 annexed hereto
(collectively, the “Subsidiaries”).
On
the Closing Date, each Subsidiary will issue its guarantee of the Notes;
the
Company owns, directly or indirectly, all of the issued and outstanding equity
interests of each of the Subsidiaries; other than the equity interests 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 no changes therein or to the articles of incorporation and the bylaws
(or
other organizational documents) of the Subsidiaries will be made on or after
the
date hereof or on or before the Closing Date. Each Subsidiary has been duly
formed and is validly existing as a corporation, limited liability company
or
limited partnership in good standing under the laws of the jurisdiction of
its
formation, with full corporate power and authority to own, lease and operate
its
properties and to conduct its business as described in the Final Memorandum.
Each Subsidiary is duly qualified to do business as a foreign corporation,
limited liability company or limited partnership 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 equity interests 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 Final
Memorandum, granted under the Company’s senior credit agreement dated March 22,
2004, as amended. 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. 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
Company has all requisite corporate power and authority to execute, deliver
and
perform each of its obligations under the Notes, the Exchange Notes (as defined
in the Registration Rights Agreement) and the Private Exchange Notes (as
defined
in the Registration Rights Agreement). The Notes, when issued, will be in
the
form contemplated by the Indenture. The Notes, the Exchange Notes and the
Private Exchange Notes have each been duly and validly authorized by the
Company
and, when executed by the Company and authenticated by the Trustee in accordance
with the provisions of the Indenture and, in the case of the Notes, when
delivered to and paid for by the Initial Purchasers in accordance with the
terms
of this Agreement, will constitute valid and legally binding obligations
of the
Company, in each case entitled to the benefits of the Indenture, and enforceable
against the Company in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally and (ii) general principles
of equity and the discretion of the court before which any proceeding therefor
may be brought.
(h) Each
of
the Subsidiary Guarantors has all requisite power and authority to execute,
deliver and perform each of its obligations under the Guarantees and the
guarantees of the Exchange Notes and the Private Exchange Notes. The Guarantees,
and the guarantees of the Exchange Notes, when issued, will be in the form
contemplated by the Indenture. The Guarantees have been duly and validly
authorized by each of the Subsidiary Guarantors and, when the Guarantees
are
executed by each of the Subsidiary Guarantors and the Notes are authenticated
by
the Trustee in accordance with the provisions of the Indenture, will have
been
duly executed, issued and delivered and will constitute valid and legally
binding obligations of the Subsidiary Guarantors, and the guarantees of the
Exchange Notes and the Private Exchange Notes, if any, have been duly and
validly authorized by each of the Subsidiary Guarantors and, when the guarantees
of the Exchange Notes and the Private Exchange Notes, if any, are executed
by
each of the Subsidiary Guarantors and the Exchange Notes and the Private
Exchange Notes, if any, are authenticated by the Trustee in accordance with
the
provisions of the Indenture and issued in exchange for the guarantees of
the
Notes in accordance with the Indenture, will constitute valid and binding
obligations of such Subsidiary Guarantor, in each case entitled to the benefits
of the Indenture and enforceable against such Subsidiary Guarantor in accordance
with their terms, subject to (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally and (ii) general principles
of equity and the discretion of the court before which any proceeding therefor
may be brought.
(i) The
Company and each of the Subsidiary Guarantors has all requisite corporate
or
organizational power and authority to execute, deliver and perform its
obligations under the Indenture. The Indenture meets the requirements for
qualification under the Trust Indenture Act of 1939, as amended (the
“TIA”).
The
Indenture has been duly and validly authorized by the Company and each of
the
Subsidiary Guarantors and, when executed and delivered by the Company and
each
of the Subsidiary Guarantors (assuming the due authorization, execution and
delivery by the Trustee), will constitute a valid and legally binding agreement
of the Company and each of the Subsidiary Guarantors, enforceable against
the
Company and each of the Subsidiary Guarantors in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally and
(ii) general principles of equity and the discretion of the court
before
which any proceeding therefor may be brought.
(j) The
Company and each of the Subsidiary Guarantors has all requisite corporate
or
organizational power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement. The Registration Rights
Agreement has been duly and validly authorized by the Company and each of
the
Subsidiary Guarantors and, when executed and delivered by the Company and
each
of the Subsidiary Guarantors (assuming the due authorization, execution and
delivery by the Initial Purchasers), will constitute a valid and legally
binding
agreement of the Company enforceable against the Company and each of the
Subsidiary Guarantors in accordance with its terms, except that (A) the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or
hereafter in effect relating to creditors’ rights generally and
(ii) general principles of equity and the discretion of the court
before
which any proceeding therefor may be brought and (B) any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(k) The
Company and each of the Subsidiary Guarantors has all requisite corporate
or
organizational power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. This Agreement and the consummation by the Company and each of the
Subsidiary Guarantors of the transactions contemplated hereby have been duly
authorized by the Company and each of the Subsidiary Guarantors. This Agreement
has been duly and validly executed and delivered by the Company and each
of the
Subsidiary Guarantors.
(l) Neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time
or
both would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a
part of
such indebtedness under) its (i) respective charter or bylaws (or other
formation documents), (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, for such breaches, violations or defaults as
would
not, individually or in the aggregate, have a Material Adverse Effect. The
execution, delivery and performance of this Agreement, the issuance and sale
of
the Securities 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 (or other formation
documents) of the Company or any of the Subsidiaries, (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 clause (2) above, for 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 Final
Memorandum as being owned or leased by the Company or any of the Subsidiaries
(the “Properties”).
(m) No
approval, authorization, consent or order of or filing with any federal,
state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with the NYSE, or approval of the stockholders of the
Company, is required in connection with the issuance and sale of the Securities
or the consummation by the Company or any of the Subsidiary Guarantors of
the
transactions contemplated hereby other than which has been effected and any
necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Securities are being offered by the Initial
Purchasers.
(n) Except
as
expressly set forth in the Final Memorandum, (i) no person has the
right,
contractual or otherwise, to cause the Company to issue or sell to it any
shares
of common stock of the Company or shares of any other capital stock or other
equity interests of the Company and (ii) no person has any preemptive
rights, resale rights, rights of first refusal or other rights to purchase
any
shares of common stock of the Company 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 initial purchaser or as a financial advisor to the Company in
connection with the offer and sale of the Securities, whether as a result
of the
sale of the Securities as contemplated thereby or otherwise.
(o) Each
of
the Company and the Subsidiaries (and, to the Company’s knowledge, each
operator, lessee or sublessee of any Property or portion thereof) (i) has
all
necessary licenses, authorizations, consents and approvals, (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 Final Memorandum, 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
knowledge of the Company or any of the Subsidiary Guarantors, any such operator,
lessee or sublessee) is in violation of, or in default under, or has received
notice of any proceedings relating to revocation or modification of, any
such
license, authorization, consent or approval or any federal, state, local
or
foreign law, regulation or rule or any decree, order or judgment applicable
to
the Company or any of the Subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the aggregate, have
a
Material Adverse Effect.
(p) All
legal
or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and
the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, leases or documents of a character required to be described in
a
Registration Statement on Form S-3 filed by the Company or to be filed as
an
exhibit to such a Registration Statement or any incorporated document have
been
so described or filed as required.
(q) There
are
no actions, suits, claims, investigations or proceedings pending or, to the
knowledge of the Company or any of the Subsidiary Guarantors, threatened
or
contemplated to which the Company or any of the Subsidiaries or any of their
respective directors or officers (or, to the Company’s knowledge, any person
from whom the Company or any Subsidiary acquired any of the Properties (each,
a
“seller”),
or
any lessee, sublessee or operator of any Property or any portion thereof)
is or
would be a party, or of which any of the respective properties or assets
of the
Company and the Subsidiaries, or any Property, is or would be subject at
law or
in equity, before or by any federal, state, local or foreign governmental
or
regulatory commission, board, body, authority or agency, except any such
action,
suit, claim, investigation or proceeding which would not result in a judgment,
decree or order having, individually or in the aggregate, a Material Adverse
Effect.
(r) Ernst
& Young LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is incorporated by reference in the Final
Memorandum, are independent public accountants as required by the Act and
by
Rule 3600T of the Public Company Accounting Oversight Board.
(s) The
financial statements of the Company and the Subsidiaries included or
incorporated by reference in the Final Memorandum, together with the related
notes, 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 the Securities Exchange Act of 1934, as amended (the “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 Final Memorandum, if
any,
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 Final Memorandum 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 Final Memorandum (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 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 Final Memorandum. All
disclosures included in the Final Memorandum regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the
Commission) comply in all material respects with Regulation G of the Exchange
Act and Item 10 of Regulation S-K under the Act, to the extent applicable
(as if such provisions were applicable to the Final Memorandum).
(t) Subsequent
to the respective dates as of which information is given in the Final
Memorandum, 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 Final Memorandum) or outstanding indebtedness
of the Company or any Subsidiary or (v) any dividend or distribution of any
kind
declared, paid or made on the capital stock of the Company or any Subsidiary.
(u) Neither
the Company nor any Subsidiary is and, after giving effect to the offering
and
sale of the Securities, 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”).
(v) None
of
the Company, the Subsidiaries or any agent acting on their behalf, other
than
the Initial Purchasers, has taken or will take any action that might cause
this
Agreement or the sale of the Notes to violate Regulation T, U or X
of the
Board of Governors of the Federal Reserve System, in each case as in effect,
or
as the same may hereafter be in effect, on the Closing Date.
(w) The
Company, and each of the Subsidiaries, has insurable title, and, in the case
of
real property, in fee simple, to the Properties, free and clear of all liens,
claims, mortgages, deeds of trust, restrictions, security interests and other
encumbrances or defects (“Property
Encumbrances”),
except for (x) the leasehold interests of lessees in the Properties of the
Company and the Subsidiaries held under lease (the “Leases”)
and
(y) any other Property Encumbrances that would not, individually or in the
aggregate, have a Material Adverse Effect. All Property Encumbrances on or
affecting the Properties which are required to be disclosed in the Final
Memorandum are disclosed therein as required.
(x) Each
of
the Leases pertaining to the Properties has been duly authorized by the Company
or a Subsidiary, as applicable, and is a valid, subsisting and enforceable
agreement of the Company or such Subsidiary, as applicable, and, to the
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.
(y) No
person
other than the Company or a Subsidiary has an option or right of first refusal
to purchase all or part of any 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 refused, will not individually or in the aggregate
have a Material Adverse Effect.
(z) To
the
knowledge of the Company or any of the Subsidiary Guarantors, except as
disclosed in the Final Memorandum, no lessee of any portion of any of the
Properties is in default under its respective lease, and there is no event
which, with notice, lapse of time or both, would constitute a default under
any
such lease, except such defaults that would not, individually or in the
aggregate, have a Material Adverse Effect.
(aa) To
the
knowledge of the Company or any of the Subsidiary Guarantors, except as
disclosed in the Final Memorandum, no borrower of a mortgage loan from the
Company is in default under its respective mortgage loan, and there is no
event
which, with notice, lapse of time or both, would constitute a default under
any
such mortgage loan, except such defaults that would not, individually or
in the
aggregate, have a Material Adverse Effect.
(bb) The
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), trade names, service
names, copyrights, trade secrets and other proprietary information described
in
the Final Memorandum as being owned or licensed by them or which are necessary
for the conduct of their respective businesses, except where the failure
to own,
license or have such rights would not, individually or in the aggregate,
have a
Material Adverse Effect.
(cc) Neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice,
except as would not, individually or in the aggregate, have a Material Adverse
Effect. There has been no violation of any federal, state or local law relating
to discrimination in the hiring, promotion or pay of employees, any applicable
wage or hour laws or any provision of the Employee Retirement Income Security
Act of 1974 (“ERISA”)
or the
rules and regulations promulgated thereunder concerning the employees of
the
Company or any of the Subsidiaries, except as would not, individually or
in the
aggregate, have a Material Adverse Effect.
(dd) The
Company and the Subsidiaries and their properties, assets and operations
(and,
to the knowledge of the Company or any of the Subsidiary Guarantors, each
operator or lessee of any Property or portion thereof) are in compliance
with,
and hold all permits, authorizations and approvals required under, Environmental
Laws (as defined below), except to the extent that failure to so comply or
to
hold such permits, authorizations or approvals would not, individually or
in the
aggregate, have a Material Adverse Effect. There are no past, present or,
to the
knowledge
of the
Company or any of the Subsidiary Guarantors, 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
knowledge of the Company or any of the Subsidiary Guarantors, 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). Neither the Company nor any of the Subsidiaries, nor, to
the
knowledge of the Company or any of the Subsidiary Guarantors, any seller,
lessee, sublessee or operator of any Property or portion thereof or any previous
owner thereof, has received from any governmental authority notice of any
violation, concerning the Properties, of any municipal, state or federal
law,
rule or regulation or of any Environmental Law, except for such violations
as
have heretofore been cured and except for such violations as would not,
individually or in the aggregate, have a Material Adverse Effect. As used
herein, “Environmental
Law”
means
any federal, state or local law, statute, ordinance, rule, regulation, order,
decree, judgment, injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the protection,
cleanup or restoration of the environment or natural resources, including
those
relating to the distribution, processing, generation, treatment, storage,
disposal, transportation, other handling or release or threatened release
of
Hazardous Materials, and “Hazardous
Materials”
means
any material (including, without limitation, pollutants, contaminants, hazardous
or toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law.
(ee) The
Company and the Subsidiaries have (A) all licenses, certificates,
permits,
authorizations, approvals, franchises and other rights from, and have 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 them in the manner described
in
the Final Memorandum, 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.
(ff) Neither
the Company nor any of the Subsidiaries, nor, to the knowledge of the Company
or
any of the Subsidiary Guarantors, 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. Each of the Properties, and the
current and intended use and occupancy thereof, complies with all applicable
zoning laws, ordinances and regulations, except where such failure does and
will
not, individually or in the aggregate, have a Material Adverse
Effect.
(gg) All
tax
returns required to be filed by the Company or any of the Subsidiaries have
been
timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions
to
tax or penalties applicable thereto due or claimed to be due from such entities
have been timely paid, other than those being contested in good faith and
for
which adequate reserves have been provide and which would not, individually
or
in the aggregate, have a Material Adverse Effect. To the knowledge of the
Company or any of the Subsidiary Guarantors, there is no tax deficiency which
has been asserted against the Company or any Subsidiary, except any tax
deficiency which would not, individually or in the aggregate, have a Material
Adverse Effect.
(hh) 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 or any of the Subsidiary Guarantors, threatened.
(ii) Each
of
the Company and the Subsidiaries is 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 Final Memorandum. 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.
(jj) Neither
the Company nor any of the Subsidiaries has sustained since the date of the
last
audited financial statements included or incorporated by reference in the
Final
Memorandum 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.
(kk) 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, any
Incorporated Document, and no such termination or non-renewal has been
threatened by the Company or any Subsidiary or, to the knowledge of the Company
or any Subsidiary Guarantor 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.
(ll) 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.
(mm) 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 NYSE promulgated thereunder.
(nn) This
Agreement, the Securities, the Indenture and the Registration Rights Agreement
will conform in all material respects to the descriptions thereof in the
Final
Memorandum.
(oo) No
holder
of securities of the Company or any Subsidiary will be entitled to have such
securities registered under the registration statements required to be filed
by
the Company pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(pp) Immediately
after the consummation of the transactions contemplated by this Agreement,
the
fair value and present fair saleable value of the assets of each of the Company
and the Subsidiaries (each on a consolidated basis) will exceed the sum of
its
stated liabilities and identified contingent liabilities; none of the Company
or
the Subsidiaries (each on a consolidated basis) is, nor will any of the Company
or the Subsidiaries (each on a consolidated basis) be, after giving effect
to
the execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, (a) left with unreasonably
small
capital with which to carry on its business as it is proposed to be conducted,
(b) unable to pay its debts (contingent or otherwise) as they mature
or
(c) otherwise insolvent.
(qq) None
of
the Company, the Subsidiaries or any of their respective Affiliates (as defined
in Rule 501(b) of Regulation D under the Act) has directly, or through
any
agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of any “security” (as defined in the Act) that is or could
be integrated with the sale of the Notes in a manner that would require the
registration under the Act of the Notes or (ii) engaged in any form
of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the Securities
or
in any manner involving a public offering within the meaning of
Section 4(2) of the Act. Assuming the accuracy of the representations
and
warranties of the Initial Purchasers in Section 8 hereof, it is not
necessary in connection with the offer, sale and delivery of the Securities
to
the Initial Purchasers in the manner contemplated by this Agreement to register
any of the Notes under the Act or to qualify the Indenture under the
TIA.
(rr) No
securities of the Company or any Subsidiary are of the same class (within
the
meaning of Rule 144A under the Act) as the Securities and listed on
a
national securities exchange registered under Section 6 of the Exchange
Act, or quoted in a U.S. automated inter-dealer quotation system.
(ss) None
of
the Company, the Subsidiaries, any of their respective Affiliates or any
person
acting on its or their behalf (other than the Initial Purchasers) has engaged
in
any directed selling efforts (as that term is defined in Regulation S
under
the Act (“Regulation S”))
with
respect to the Securities. The Company, the Subsidiaries and their respective
Affiliates and any person acting on its or their behalf (other than the Initial
Purchasers) have complied with the offering restrictions requirement of
Regulation S.
(tt) 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. 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.
(uu) All
statistical or market-related data included or incorporated by reference
in the
Final Memorandum 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.
(vv) Neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company
and
each of the Subsidiary Guarantors, 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 Final Memorandum or any document incorporated by reference
therein.
(ww) 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 Final Memorandum.
(xx) 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 Final Memorandum 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”).
All
statements in the Final Memorandum regarding the Company’s qualification as a
REIT are true, complete and correct in all material respects.
(yy) 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 Securities.
(zz) Any
certificate signed by any officer of the Company or any Subsidiary Guarantor
and
delivered to any Initial Purchaser or to counsel for the Initial Purchasers
shall be deemed a joint and several representation and warranty by the Company
and each of the Subsidiary Guarantors to each Initial Purchaser as to the
matters covered thereby.
Section
3 Purchase,
Sale and Delivery of the Notes.
On the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Company
and the Subsidiary Guarantors agree to issue and sell to the Initial Purchasers,
and the Initial Purchasers, acting severally and not jointly, agree to purchase
the Securities in the respective amounts set forth on Schedule 1
hereto
from the Company and the Subsidiary Guarantors at 98.1998875% of their principal
amount, plus accrued interest, if any, from October 1, 2005 to the Closing
Date.
One or more certificates in definitive form for the Securities that the Initial
Purchasers have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchasers
request upon notice to the Company of at least 48 hours prior to the Closing
Date, shall be delivered by or on behalf of the Company and the Subsidiary
Guarantors to the Initial Purchasers, against payment by or on behalf of
the
Initial Purchasers of the purchase price therefor by wire transfer (same
day
funds), to such account or accounts as the Company shall specify in writing
prior to the Closing Date, or by such means as the parties hereto shall agree
prior to the Closing Date. Such delivery of and payment for the Securities
shall
be made at the offices of Cahill Gordon & Reindel LLP,
80 Pine
Street, New York, New York at 10:00 A.M., New York time, on December
2,
2005, or at such other place, time or date as the Initial Purchasers, on
the one
hand, and the Company, on the other hand, may agree upon, such time and date
of
delivery against payment being herein referred to as the “Closing
Date.”
The
Company and the Subsidiary Guarantors will make such certificate or certificates
for the Securities available for checking and packaging by the Initial
Purchasers at the offices of Deutsche Bank Securities Inc. in New York, New
York, or at such other place as Deutsche Bank Securities Inc. may designate,
at
least 24 hours prior to the Closing Date.
Section
4 Offering
by the Initial Purchasers.
The
Initial Purchasers propose to make an offering of the Securities at the price
and upon the terms set forth in the Final Memorandum as soon as practicable
after this Agreement is entered into and as in the judgment of the Initial
Purchasers is advisable.
Section
5 Covenants
of the Company.
Each of
the Company and the Subsidiary Guarantors, as the case may be, jointly and
severally, covenants and agrees with the Initial Purchasers as
follows:
(a) The
Company will not amend or supplement the Preliminary Memorandum or the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy for
a
reasonable period of time prior to the proposed amendment or supplement and
as
to which the Initial Purchasers shall not have given their consent (which
consent shall not be unreasonably withheld). The Company will promptly, upon
the
reasonable request of the Initial Purchasers or counsel for the Initial
Purchasers, make any amendments or supplements to the Preliminary Memorandum
or
the Final Memorandum that may be necessary or advisable in connection with
the
resale of the Securities by the Initial Purchasers.
(b) The
Company and each of the Subsidiary Guarantors will cooperate with the Initial
Purchasers, to arrange for the qualification of the Securities for offering
and
sale under the securities or “Blue Sky” laws of such jurisdictions as the
Initial Purchasers may designate and will continue such qualifications in
effect
for as long as may be necessary to complete the resale of the Securities;
provided, however, that in connection therewith, neither the Company nor
any
Subsidiary Guarantor shall be required to qualify as a foreign corporation
or to
execute a general consent to service of process in any jurisdiction or subject
itself to taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(c) If,
at
any time prior to the completion of the distribution by the Initial Purchasers
of the Securities or the Private Exchange Notes, any event occurs or information
becomes known as a result of which the Final Memorandum as then amended or
supplemented would include any untrue statement of a material fact, or omit
to
state a material fact necessary to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the Final
Memorandum to comply with applicable law, the Company will promptly notify
the
Initial Purchasers thereof and will prepare, at the expense of the Company,
an
amendment or supplement to the Final Memorandum that corrects such statement
or
omission or effects such compliance.
(d) The
Company will, without charge, provide to the Initial Purchasers and to counsel
for the Initial Purchasers as many copies of the Preliminary Memorandum and
the
Final Memorandum or any amendment or supplement thereto as the Initial
Purchasers may reasonably request.
(e) The
Company will apply the net proceeds from the sale of the Notes as set forth
under “Use of Proceeds” in the Final Memorandum.
(f) For
so
long as any of the Securities remain outstanding, the Company will furnish
to
the Initial Purchasers copies of all reports and other communications (financial
or otherwise) furnished by the Company to the Trustee or to the holders of
the
Securities and, as soon as available, copies of any reports or financial
statements furnished to or filed by the Company with the Commission or any
national securities exchange on which any class of securities of the Company
may
be listed; provided that the foregoing obligation will not apply to any reports
or other communication made available on the Commission’s EDGAR
database.
(g) Prior
to
the Closing Date, the Company will furnish to the Initial Purchasers, as
soon as
they have been prepared, a copy of any unaudited interim consolidated financial
statements of the Company and the Subsidiaries for any period subsequent
to the
period covered by the most recent financial statements appearing in the Final
Memorandum.
(h) None
of
the Company, the Subsidiary Guarantors or any of their Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect
of any
“security” (as defined in the Act) that could be integrated with the sale of the
Securities in a manner which would require the registration under the Act
of the
Securities.
(i) The
Company and the Subsidiary Guarantors will not, and will not permit any of
the
other Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Securities or in any manner involving
a
public offering within the meaning of Section 4(2) of the Act.
(j) For
so
long as any of the Securities remain outstanding, the Company will make
available at its expense, upon request, to any holder of such Securities
and any
prospective purchasers thereof the information specified in Rule 144A(d)(4)
under the Act, unless the Company is then subject to Section 13 or
15(d) of
the Exchange Act.
(k) The
Company will use its best efforts to (i) permit the Securities to
be
designated as PORTAL-eligible securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
(“NASD”)
relating to trading in the NASD’s Portal Market (the “Portal
Market”)
and
(ii) permit the Securities to be eligible for clearance and settlement
through The Depository Trust Company.
(l) In
connection with Securities offered and sold in an off shore transaction (as
defined in Regulation S) the Company will not register any transfer of such
Notes not made in accordance with the provisions of Regulation S and will
not,
except in accordance with the provisions of Regulation S, if applicable,
issue
any such Notes in the form of definitive securities.
(m) None
of
the Company, the Subsidiary Guarantors or any of their Affiliates will engage
in
any directed selling efforts (as that term is defined in Regulation S) with
respect to the Securities.
(n) For
a
period of two years (calculated in accordance with paragraph (d) of
Rule 144 under the Act) following the date of original issuance of
the
Securities none of the Company, the Subsidiary Guarantors or any of their
respective Affiliates will re-sell any such Securities which are restricted
securities (as such term is defined under Rule 144(a)(3) under the
Act).
Section
6 Expenses.
The
Company and the Subsidiary Guarantors, jointly and severally, agree to pay
all
costs and expenses incident to the performance of their obligations under
this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including
all costs and expenses incident to (i) the printing, word processing
or
other production of documents with respect to the transactions contemplated
hereby, including any costs of printing the Preliminary Memorandum and the
Final
Memorandum and any amendment or supplement thereto, and any “Blue Sky”
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (iv) preparation (including printing), issuance
and delivery to the Initial Purchasers of the Securities, (v) the
qualification of the Securities under state securities and “Blue Sky” laws,
including filing fees and fees and disbursements of counsel for the Initial
Purchasers relating thereto, (vi) expenses in connection with the
“roadshow” and any other meetings with prospective investors in the Securities,
(vii) fees and expenses of the Trustee, including fees and expenses
of
counsel, (viii) all expenses and listing fees incurred in connection
with
the application for quotation of the Securities on the PORTAL Market and
(ix) any fees charged by investment rating agencies for the rating
of the
Securities. If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Initial Purchasers set forth
in
Section 7 hereof is not satisfied, because this Agreement is terminated
or
because of any failure, refusal or inability on the part of the Company or
the
Subsidiary Guarantors to perform all obligations and satisfy all conditions
on
their part to be performed or satisfied hereunder (other than solely by reason
of a default by the Initial Purchasers of their obligations hereunder after
all
conditions hereunder have been satisfied in accordance herewith), the Company
and the Subsidiary Guarantors agree to promptly reimburse the Initial Purchasers
upon demand for all reasonable and documented out-of-pocket expenses (including
the fees, disbursements and charges of Cahill Gordon & Reindel
LLP,
counsel
for the Initial Purchasers), that shall have been incurred by the Initial
Purchasers in connection with the proposed purchase and sale of the
Securities.
Section
7 Conditions
of the Initial Purchasers’ Obligations.
The
obligation of the Initial Purchasers to purchase and pay for the Securities
shall, in their sole discretion, be subject to the satisfaction or waiver
of the
following conditions on or prior to the Closing Date:
(a) On
the
Closing Date, the Initial Purchasers shall have received the opinions, dated
as
of the Closing Date and addressed to the Initial Purchasers, of (i) Powell
Goldstein LLP, counsel for the Company and certain of the Subsidiary Guarantors,
in form and substance satisfactory to counsel for the Initial Purchasers,
as set
forth in Exhibit B-1
and
Exhibit
B-2
hereto
and (ii) local counsel for certain of the Subsidiary Guarantors, in
form
and substance satisfactory to counsel for the Initial Purchasers, as set
forth
in Exhibit C
hereto.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates
of
officers of the Company and the Subsidiary Guarantors and certificates of
public
officials, copies of which shall have been provided to the Initial
Purchasers.
(b) On
the
Closing Date, the Initial Purchasers shall have received the opinion, in
form
and substance satisfactory to the Initial Purchasers, dated as of the Closing
Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel
LLP,
counsel
for the Initial Purchasers, with respect to certain legal matters relating
to
this Agreement and such other related matters as the Initial Purchasers may
reasonably require. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon
certificates of officers of the Company and the Subsidiary Guarantors and
certificates of public officials, copies of which shall have been provided
to
the Initial Purchasers.
(c) The
Initial Purchasers shall have received from Ernst & Young LLP a comfort
letter or letters dated the date hereof and the Closing Date, in form and
substance satisfactory to counsel for the Initial Purchasers.
(d) The
representations and warranties of the Company and the Subsidiary Guarantors
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date; the statements of the Company’s and the Subsidiary Guarantors’ officers
made pursuant to any certificate delivered in accordance with the provisions
hereof shall be true and correct on and as of the date made and on and as
of the
Closing Date; the Company and the Subsidiary Guarantors shall have performed
all
covenants and agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date; and, except
as
described in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), subsequent to the date of the most recent
financial statements in such Final Memorandum, there shall have been no event
or
development, and no information shall have become known, that, individually
or
in the aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(e) The
sale
of the Securities hereunder shall not be enjoined (temporarily or permanently)
on the Closing Date.
(f) Subsequent
to the date of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date hereof),
none
of the Company or any of the Subsidiaries shall have sustained any loss or
interference with respect to its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance,
or
from any strike, labor dispute, slow down or work stoppage or from any legal
or
governmental proceeding, order or decree, which loss or interference,
individually or in the aggregate, has or would be reasonably likely to have
a
Material Adverse Effect.
(g) The
Initial Purchasers shall have received certificates of the Company and each
of
the Subsidiary Guarantors, dated the Closing Date, signed on behalf of the
Company or the applicable Subsidiary Guarantor by its Chairman of the Board,
President or any Vice President and the Chief Financial Officer, to the effect
that
(i) the
representations and warranties of the Company or the applicable Subsidiary
Guarantor contained in this Agreement are true and correct on and as of the
date
hereof and on and as of the Closing Date, and the Company or the applicable
Subsidiary Guarantor has performed all covenants and agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior
to
the Closing Date;
(ii) at
the
Closing Date, since the date hereof or since the date of the most recent
financial statements in the Final Memorandum (exclusive of any amendment
or
supplement thereto after the date hereof), no event or development has occurred,
and no information has become known to the Company or such Subsidiary Guarantor,
that, individually or in the aggregate, has or would be reasonably likely
to
have a Material Adverse Effect; and
(iii) the
sale
of the Securities hereunder has not been enjoined (temporarily or
permanently).
(h) On
the
Closing Date, the Initial Purchasers shall have received the Registration
Rights
Agreement executed by the Company and the Subsidiary Guarantors and such
agreement shall be in full force and effect.
(i) On
the
Closing Date, the Initial Purchasers shall have received the Indenture, as
amended by each of the supplemental indentures, executed by the Company,
each of
the Subsidiary Guarantors and the Trustee and such agreement shall be in
full
force and effect.
(j) The
Securities shall be eligible for clearance and settlement through The Depository
Trust Company.
(k) The
Securities shall be designated PORTAL-eligible securities in accordance with
the
rules and regulations of the NASD.
On
or
before the Closing Date, the Initial Purchasers and counsel for the Initial
Purchasers shall have received such further documents, opinions, certificates,
letters and schedules or instruments relating to the business, corporate,
legal
and financial affairs of the Company and the Subsidiaries as they shall have
heretofore reasonably requested from the Company.
All
such
documents, opinions, certificates, letters, schedules or instruments delivered
pursuant to this Agreement will comply with the provisions hereof only if
they
are reasonably satisfactory in all material respects to the Initial Purchasers
and counsel for the Initial Purchasers. The Company and the Subsidiary
Guarantors shall furnish to the Initial Purchasers such conformed copies
of such
documents, opinions, certificates, letters, schedules and instruments in
such
quantities as the Initial Purchasers shall reasonably request.
Section
8 Offering
of Securities; Restrictions on Transfer.
(a) Each
of the Initial Purchasers agrees with the Company and the Subsidiary Guarantors
that (i) it has not and will not solicit offers for, or offer or sell,
the
Securities by any form of general solicitation or general advertising (as
those
terms are used in Regulation D under the Act) or in any manner involving
a
public offering within the meaning of Section 4(2) of the Act; and
(ii) it has and will solicit offers for the Securities only from,
and will
offer the Securities only to, (A) in the case of offers inside the
United
States, persons whom the Initial Purchasers reasonably believe to be QIBs
or, if
any such person is buying for one or more institutional accounts for which
such
person is acting as fiduciary or agent, only when such person has represented
to
the Initial Purchasers that each such account is a QIB, to whom notice has
been
given that such sale or delivery is being made in reliance on Rule 144A,
and, in each case, in transactions under Rule 144A and (B) in
the case
of offers outside the United States, to persons other than U.S. persons
(“non-U.S.
purchasers,”
which
term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for non-U.S. beneficial owners (other
than an estate or trust)); provided,
however,
that,
in the case of this clause (B), in purchasing such Securities such persons
are
deemed to have represented and agreed as provided under the caption “Notice to
Investors” contained in the Final Memorandum (or, if the Final Memorandum is not
in existence, in the most recent Memorandum).
(b) Each
of
the Initial Purchasers represents and warrants (as to itself only) with respect
to offers and sales outside the United States that (i) it has and
will
comply with all applicable laws and regulations in each jurisdiction in which
it
acquires, offers, sells or delivers Notes or has in its possession or
distributes any Memorandum or any such other material, in all cases at its
own
expense, (ii) the Notes have not been and will not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S under the Act or pursuant to an exemption
from the registration requirements of the Act and (iii) it has offered
the
Notes and will offer and sell the Notes (A) as part of its distribution
at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S and, accordingly, neither it nor any persons
acting on its behalf have engaged or will engage in any directed selling
efforts
(within the meaning of Regulation S) with respect to the Notes, and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S.
Terms
used in this Section 8 and not defined in this Agreement have the
meanings
given to them in Regulation S.
Section
9 Indemnification
and Contribution.
(a) The
Company and the Subsidiary Guarantors, jointly and severally, agree to indemnify
and hold harmless each Initial Purchaser and each person, if any, who controls
any Initial Purchaser within the meaning of Section 15 of the Act
or
Section 20 of the Exchange Act against any losses, claims, damages
or
liabilities to which any Initial Purchaser or such controlling person may
become
subject under the Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon the following:
(i) any
untrue statement or alleged untrue statement made by the Company or any
Subsidiary Guarantor in Section 2 hereof;
(ii) any
untrue statement or alleged untrue statement of any material fact contained
in
any Memorandum or any amendment or supplement thereto; or
(iii) the
omission or alleged omission to state, in any Memorandum or any amendment
or
supplement thereto, a material fact required to be stated therein or necessary
to make the statements therein not misleading;
and
will
reimburse, as incurred, the Initial Purchasers and each such controlling
person
for any reasonable legal or other documented expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with
any
such loss, claim, damage, liability or action; provided,
however,
the
Company and the Subsidiary Guarantors will not be liable in any such case
to the
extent that any such loss, claim, damage, or liability arises out of or is
based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any Memorandum or any amendment or supplement thereto in
reliance upon and in conformity with written information concerning the Initial
Purchasers furnished to the Company by the Initial Purchasers through Deutsche
Bank Securities Inc. specifically for use therein; provided
further,
however,
that
the Company and the Subsidiary Guarantors will not be liable to any Initial
Purchaser or any person controlling such Initial Purchaser with respect to
any
such untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Memorandum that is corrected in the Final
Memorandum (or any amendment or supplement thereto) if the person asserting
any
such loss, claim, damage or liability purchased Securities from such Initial
Purchaser but was not sent or given a copy of the Final Memorandum (as amended
or supplemented) in any case where such delivery of the Final Memorandum
(as
amended or supplemented) was required by the Act, unless such failure to
deliver
the Final Memorandum (as amended or supplemented) was a result of noncompliance
by the Company with Section 5 hereof. The indemnity provided for in
this
Section 9 will be in addition to any liability that the Company and
the
Subsidiary Guarantors may otherwise have to the indemnified parties. The
Company
and the Subsidiary Guarantors shall not be liable under this Section 9
for
any settlement of any claim or action effected without their prior written
consent, which shall not be unreasonably withheld.
(b) Each
Initial Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company and the Subsidiary Guarantors, their respective directors,
their respective officers and each person, if any, who controls the Company
and
the Subsidiary Guarantors within the meaning of Section 15 of the
Act or
Section 20 of the Exchange Act against any losses, claims, damages
or
liabilities to which the Company and the Subsidiary Guarantors or any such
director, officer or controlling person may become subject under the Act,
the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material
fact
contained in any Memorandum or any amendment or supplement thereto, or
(ii) the omission or the alleged omission to state therein a material
fact
required to be stated in any Memorandum or any amendment or supplement thereto,
or necessary to make the statements therein not misleading, in each case
to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Initial Purchaser, furnished
to the Company by such Initial Purchasers through Deutsche Bank Securities
Inc.
specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any reasonable
legal or other documented expenses incurred by the Company and the Subsidiary
Guarantors or any such director, officer or controlling person in connection
with investigating or defending against or appearing as a third party witness
in
connection with any such loss, claim, damage, liability or action in respect
thereof. The indemnity provided for in this Section 9 will be in addition
to any liability that the Initial Purchasers may otherwise have to the
indemnified parties. The Initial Purchasers shall not be liable under this
Section 9 for any settlement of any claim or action effected without
their
consent, which shall not be unreasonably withheld.
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice
of the
commencement of any action for which such indemnified party is entitled to
indemnification under this Section 9, such indemnified party will,
if a
claim in respect thereof is to be made against the indemnifying party under
this
Section 9, notify the indemnifying party of the commencement thereof
in
writing; but the omission to so notify the indemnifying party (i) will
not
relieve it from any liability under paragraph (a) or (b) above unless
and
to the extent such failure results in the forfeiture by the indemnifying
party
of substantial rights and defenses and (ii) will not, in any event,
relieve
the indemnifying party from any obligations to any indemnified party other
than
the indemnification obligation provided in paragraphs (a) and (b)
above. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided,
however,
that if
(i) the use of counsel chosen by the indemnifying party to represent
the
indemnified party would present such counsel with a conflict of interest,
(ii) the defendants in any such action include both the indemnified
party
and the indemnifying party and the indemnified party shall have been advised
by
counsel that there may be one or more legal defenses available to it and/or
other indemnified parties that are different from or additional to those
available to the indemnifying party or (iii) the indemnifying party
shall
not have employed counsel reasonably satisfactory to the indemnified party
to
represent the indemnified party within a reasonable time after receipt by
the
indemnifying party of notice of the institution of such action, then, in
each
such case, the indemnifying party shall not have the right to direct the
defense
of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel
to
defend such action on behalf of such indemnified party or parties. After
notice
from the indemnifying party to such indemnified party of its election so
to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable
to
such indemnified party under this Section 9 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred
by
such indemnified party in connection with the defense thereof, unless
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying
party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchasers in the
case
of paragraph (a) of this Section 9 or the Company and the Subsidiary
Guarantors in the case of paragraph (b) of this Section 9,
representing the indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action
or
actions) or (ii) the indemnifying party has authorized in writing
the
employment of counsel for the indemnified party at the expense of the
indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such
notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 9,
in which case the indemnified party may effect such a settlement without
such
consent. No indemnifying party shall, without the prior written consent of
the
indemnified party, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any indemnified party is or could
have
been a party, or indemnity could have been sought hereunder by any indemnified
party, unless such settlement (A) includes an unconditional written
release
of the indemnified party, in form and substance reasonably satisfactory to
the
indemnified party, from all liability on claims that are the subject matter
of
such proceeding and (B) does not include any statement as to an admission
of fault, culpability or failure to act by or on behalf of any indemnified
party.
(d) In
circumstances in which the indemnity agreement provided for in the preceding
paragraphs of this Section 9 is unavailable to, or insufficient to
hold
harmless, an indemnified party in respect of any losses, claims, damages
or
liabilities (or actions in respect thereof) referred to herein, each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party
as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and
the
indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i)
is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
or
alleged statements or omissions that resulted in such losses, claims, damages
or
liabilities (or actions in respect thereof). The relative benefits received
by
the Company and the Subsidiary Guarantors on the one hand and any Initial
Purchaser on the other shall be deemed to be in the same proportion as the
total
proceeds from the offering (before deducting expenses) received by the Company
bear to the total discounts and commissions received by such Initial Purchaser.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Subsidiary Guarantors on the
one
hand, or such Initial Purchaser on the other, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company, the Subsidiary
Guarantors and the Initial Purchasers agree that it would not be equitable
if
the amount of such contribution were determined by pro rata or per capita
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this
paragraph (d), no Initial Purchaser shall be obligated to make
contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by such Initial Purchaser under
this
Agreement, less the aggregate amount of any damages that such Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact,
and
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. For purposes of
this
paragraph (d), each person, if any, who controls an Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of
the
Exchange Act shall have the same rights to contribution as the Initial
Purchasers, and each director of the Company and the Subsidiary Guarantors,
each
officer of the Company and the Subsidiary Guarantors and each person, if
any,
who controls the Company and the Subsidiary Guarantors within the meaning
of
Section 15 of the Act or Section 20 of the Exchange Act shall
have the
same rights to contribution as the Company.
Section
10 Survival
Clause.
The
respective representations, warranties, agreements, covenants, indemnities
and
other statements of the Company and the Subsidiary Guarantors, their officers
and the Initial Purchasers set forth in this Agreement or made by or on behalf
of them pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company
and
the Subsidiary Guarantors, any of their officers or directors, the Initial
Purchasers or any controlling person referred to in Section 9 hereof
and
(ii) delivery of and payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6,
9, 10
and 15 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
Section
11 Termination.
(a)
This
Agreement may be terminated in the sole discretion of the Initial Purchasers
by
notice to the Company and the Subsidiary Guarantors given prior to the Closing
Date in the event that the Company and the Subsidiary Guarantors shall have
failed, refused or been unable to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date:
(i) any
of
the Company or the Subsidiaries shall have sustained any loss or interference
with respect to its businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from
any
strike, labor dispute, slow down or work stoppage or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the Initial
Purchasers, has had or has a Material Adverse Effect, or there shall have
been,
in the sole judgment of the Initial Purchasers, any event or development
that,
individually or in the aggregate, has or could be reasonably likely to have
a
Material Adverse Effect (including without limitation a change in control
of the
Company or the Subsidiaries), except as described in the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading
in securities of the Company or in securities generally on the NYSE, American
Stock Exchange or the NASDAQ National Market shall have been suspended or
materially limited or minimum or maximum prices shall have been established
on
any such exchange or market;
(iii) a
banking
moratorium shall have been declared by New York or United States authorities
or
a material disruption in commercial banking or securities settlement or
clearance services in the United States;
(iv) there
shall have been (A) an outbreak or escalation of hostilities between
the
United States and any foreign power, (B) an outbreak or escalation
of any
other insurrection or armed conflict involving the United States or any other
national or international calamity or emergency or (C) any material
change
in the financial markets of the United States which, in the case of (A),
(B) or
(C) above and in the sole judgment of the Initial Purchasers, makes it
impracticable or inadvisable to proceed with the offering or the delivery
of the
Securities as contemplated by the Final Memorandum; or
(v) any
securities of the Company shall have been downgraded by any nationally
recognized statistical rating organization or any such organization shall
have
publicly announced that it has under surveillance or review, or has changed
its
outlook with respect to, its ratings of any securities of the Company (other
than an announcement with positive implications of a possible
upgrading).
(b) Termination
of this Agreement pursuant to this Section 11 shall be without liability
of
any party to any other party except as provided in Section 10
hereof.
Section
12 Information
Supplied by the Initial Purchasers.
The
statements set forth in the last paragraph on the front cover page and in
the
first and third sentences of the third paragraph and the third sentence of
the
fifth paragraph under the heading “Private Placement” in the Final Memorandum
(to the extent such statements relate to the Initial Purchasers) constitute
the
only information furnished by the Initial Purchasers to the Company for the
purposes of Sections 2(a) and 9 hereof.
Section
13 Notices.
All
communications hereunder shall be in writing and, if sent to the Initial
Purchasers, shall be mailed or delivered to (i) Deutsche Bank Securities
Inc., 60 Wall Street, New York, New York 10005, Attention: Corporate Finance
Department; if sent to the Company, shall be mailed or delivered to the Company
at 9690 Deereco Road, Suite 100, Timonium, Maryland 21093,
Attention: Robert O. Stephenson; with a copy to Powell Goldstein
LLP,
Sixteenth Floor, 191 Peachtree Street, N.E., Atlanta, Georgia 30303,
Attention: Richard H. Miller.
All
such
notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; and one business day after
being timely delivered to a next-day air courier.
Section
14 Successors.
This
Agreement shall inure to the benefit of and be binding upon the Initial
Purchasers, the Company, the Subsidiary Guarantors and their respective
successors and legal representatives, and nothing expressed or mentioned
in this
Agreement is intended or shall be construed to give any other person any
legal
or equitable right, remedy or claim under or in respect of this Agreement,
or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that
(i) the indemnities of the Company and the Subsidiary Guarantors contained
in Section 9 of this Agreement shall also be for the benefit of any
person
or persons who control the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and
(ii) the indemnities of the Initial Purchasers contained in Section 9
of this Agreement shall also be for the benefit of the directors of the Company
and the Subsidiary Guarantors, their officers and any person or persons who
control the Company and the Subsidiary Guarantors within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser
of Securities from the Initial Purchasers will be deemed a successor because
of
such purchase.
Section
15 APPLICABLE
LAW.
THE
VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET
FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY
THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS
OF LAW.
Section
16 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
If
the
foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon
this
letter shall constitute a binding agreement between the Company, the Subsidiary
Guarantors and the Initial Purchasers.
Very
truly yours,
OMEGA
HEALTHCARE INVESTORS, INC.,
as
Issuer
By: /s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer
BAYSIDE
ALABAMA HEALTHCARE SECOND, INC.
BAYSIDE
ARIZONA HEALTHCARE ASSOCIATES, INC.
BAYSIDE
ARIZONA HEALTHCARE SECOND, INC.
BAYSIDE
COLORADO HEALTHCARE ASSOCIATES, INC.
BAYSIDE
COLORADO HEALTHCARE SECOND, INC.
OHI
(CONNECTICUT), INC.
BAYSIDE
STREET II, INC.
OHI
ASSET
(CA), LLC
OHI
ASSET
(FL), LLC
OHI
ASSET
(ID), LLC
OHI
ASSET
(IN), LLC
OHI
ASSET
(LA), LLC
as
Subsidiary Guarantors
By: /s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
OHI
ASSET
(MI/NC), LLC
OHI
ASSET
(MO), LLC
OHI
ASSET
(OH), LLC
OHI
ASSET
(PA), LLC
OHI
ASSET
(TX), LLC
OHI
ASSET
II (CA), LLC
OHI
ASSET, LLC
OMEGA
ACQUISITION FACILITY I, LLC
OHI
(FLORIDA), INC.
OHI
SUNSHINE, INC.
LONG
TERM
CARE ASSOCIATES - ILLINOIS, INC.
OHI
(ILLINOIS), INC.
SKILLED
NURSING - HERRIN, INC.
SKILLED
NURSING - PARIS, INC.
BAYSIDE
INDIANA HEALTHCARE ASSOCIATES, INC.
LONG
TERM
CARE ASSOCIATES - INDIANA, INC.
OHI
(INDIANA), INC.
SKILLED
NURSING - GASTON, INC.
OHI
(IOWA), INC.
OHI
(KANSAS), INC.
OMEGA
(KANSAS), INC.
NRS
VENTURES, LLC
OS
LEASING COMPANY
STERLING
ACQUISITION CORP.
STERLING
ACQUISITION CORP. II
ARIZONA
LESSOR - INFINIA, INC.
BAYSIDE
STREET, INC.
COLORADO
LESSOR - CONIFER, INC.
DELTA
INVESTORS I, LLC
DELTA
INVESTORS II, LLC
FLORIDA
LESSOR - CRYSTAL SPRINGS, INC.
as
Subsidiary Guarantors
By: /s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
FLORIDA
LESSOR - EMERALD, INC.
FLORIDA
LESSOR - LAKELAND, INC.
FLORIDA
LESSOR - MEADOWVIEW, INC.
FLORIDA
LESSOR - WEST PALM BEACH AND SOUTHPOINT, INC.
GEORGIA
LESSOR - BONTERRA/PARKVIEW, INC.
INDIANA
LESSOR - JEFFERSONVILLE, INC.
INDIANA
LESSOR - WELLINGTON MANOR, INC.
JEFFERSON
CLARK, INC.
OHI
OF
KENTUCKY, INC.
OHI
OF
TEXAS, INC.
OMEGA
TRS
I, INC.
TEXAS
LESSOR - STONEGATE GP, INC.
TEXAS
LESSOR - STONEGATE LIMITED, INC.
TEXAS
LESSOR - STONEGATE, L.P.
TEXAS
LESSOR - TREEMONT, INC.
WASHINGTON
LESSOR - SILVERDALE, INC.
OHIMA,
INC.
LONG
TERM
CARE - MICHIGAN, INC.
LONG
TERM
CARE - NORTH CAROLINA, INC.
SKILLED
NURSING - HICKSVILLE, INC.
CENTER
HEALTHCARE ASSOCIATES, INC.
CHERRY
STREET - SKILLED NURSING, INC.
as
Subsidiary Guarantors
By: /s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
DALLAS
SKILLED NURSING, INC.
HERITAGE
TEXARKANA HEALTHCARE ASSOCIATES, INC.
LAKE
PARK
SKILLED NURSING, INC.
LONG
TERM
CARE ASSOCIATES - TEXAS, INC.
PARKVIEW
- SKILLED NURSING, INC.
PINE
TEXARKANA HEALTHCARE ASSOCIATES, INC.
REUNION
TEXARKANA HEALTHCARE ASSOCIATES, INC.
SAN
AUGUSTINE HEALTHCARE ASSOCIATES, INC.
SOUTH
ATHENS HEALTHCARE ASSOCIATES, INC.
WAXAHACHIE
HEALTHCARE ASSOCIATES, INC.
WEST
ATHENS HEALTHCARE ASSOCIATES, INC.
OHI
ASSET
II (TX), LLC
OHI
ASSET
(OH) LENDER, LLC
OHI
ASSET
(OH) NEW PHILADELPHIA, LLC
OHI
ASSET
(PA) TRUST
BALDWIN
HEALTH CENTER, INC.
CANTON
HEALTH CARE LAND, INC.
DICON
HEALTH CARE CENTER, INC.
HANOVER
HOUSE, INC.
HOUSE
OF
HANOVER, LTD.
HUTTON
I
LAND, INC.
HUTTON
II
LAND, INC.
HUTTON
III LAND, INC.
as
Subsidiary Guarantors
By: /s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
LEATHERMAN
90-1, INC.
LEATHERMAN
PARTNERSHIP 89-1, IN.C
LEATHERMAN
PARTNERSHIP 89-2, INC.
MERIDIAN
ARMS LAND, INC.
OHI
ASSET
II (PA) TRUST
OHI
ASSET
III (PA) TRUST
ORANGE
VILLAGE CARE CENTER, INC.
PAVILLION
NORTH, LLP
PAVILLION
NORTH PARTNES, INC.
PAVILLION
NURSING CENTER NORTH, INC.
ST.
MARY’S PROPERTIES, INC.
WILCARE,
LLC
as
Subsidiary Guarantors
By: /s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
OHI
ASSET
(CT) LENDER, LLC
COLONIAL
GARDENS, LLC
COPLEY
HEALTH CENTER, INC.
THE
SUBURBAN PAVILION, INC.
as
Subsidiary Guarantors
By: /s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
The
foregoing Agreement is hereby confirmed
and
accepted as of the date first above written.
DEUTSCHE
BANK SECURITIES INC.
By: A.J.
Murphy
Name:
A.J. Murphy
Title:
Director
By: John
Fowler
Name:
John Fowler
Title:
Vice President
BANC
OF
AMERICA SECURITIES LLC
By: /s/
John M. Rote
Name:
John M. Rote
Title:
Managing Director
UBS
SECURITIES LLC
By: /s/
John Santemma
Name:
John Santemma
Title:
Managing Director
By: /s/
Keith A. Lockwood
Name:
Keith A. Lockwood
Title:
Director
SCHEDULE
1
|
Initial
Purchasers
|
Principal
Amount of Notes
|
|
Deutsche
Bank Securities Inc.
|
$20,000,000
|
|
Banc
of America Securities LLC
|
$15,000,000
|
|
UBS
Securities LLC.
|
$15,000,000
|
|
Total
|
$50,000,000
|
SCHEDULE
2
Subsidiaries
of the Company
|
Subsidiary
Name
|
State
of
Incorporation
|
|
Arizona
Lessor - Infinia, Inc.
|
Maryland
|
|
Baldwin
Health Center, Inc.
|
Pennsylvania
|
|
Bayside
Alabama Healthcare Second, Inc.
|
Alabama
|
|
Bayside
Arizona Healthcare Associates, Inc.
|
Arizona
|
|
Bayside
Arizona Healthcare Second, Inc.
|
Arizona
|
|
Bayside
Colorado Healthcare Associates, Inc.
|
Colorado
|
|
Bayside
Colorado Healthcare Second, Inc.
|
Colorado
|
|
Bayside
Indiana Healthcare Associates, Inc.
|
Indiana
|
|
Bayside
Street II, Inc.
|
Delaware
|
|
Bayside
Street, Inc.
|
Maryland
|
|
Canton
Health Care Land, Inc.
|
Ohio
|
|
Center
Healthcare Associates, Inc.
|
Texas
|
|
Cherry
Street - Skilled Nursing, Inc.
|
Texas
|
|
Colonial
Gardens, LLC
|
Ohio
|
|
Colorado
Lessor - Conifer, Inc.
|
Maryland
|
|
Copley
Health Center, Inc.
|
Ohio
|
|
Dallas
Skilled Nursing, Inc.
|
Texas
|
|
Delta
Investors I, LLC
|
Maryland
|
|
Delta
Investors II, LLC
|
Maryland
|
|
Dixon
Health Care Center, Inc.
|
Ohio
|
|
Florida
Lessor - Crystal Springs, Inc.
|
Maryland
|
|
Florida
Lessor - Emerald, Inc.
|
Maryland
|
|
Florida
Lessor - Lakeland, Inc.
|
Maryland
|
|
Florida
Lessor - Meadowview, Inc.
|
Maryland
|
|
Florida
Lessor - West Palm Beach and Southpoint, Inc.
|
Maryland
|
|
Georgia
Lessor - Bonterra/Parkview, Inc.
|
Maryland
|
|
Hanover
House, Inc.
|
Ohio
|
|
Heritage
Texarkana Healthcare Associates, Inc.
|
Texas
|
|
House
of Hanover, Ltd.
|
Ohio
|
|
Hutton
I Land, Inc.
|
Ohio
|
|
Hutton
II Land, Inc.
|
Ohio
|
|
Hutton
III Land, Inc.
|
Ohio
|
|
Indiana
Lessor - Jeffersonville, Inc.
|
Maryland
|
|
Indiana
Lessor - Wellington Manor, Inc.
|
Maryland
|
|
Jefferson
Clark, Inc.
|
Maryland
|
|
Lake
Park Skilled Nursing, Inc.
|
Texas
|
|
Leatherman
90-1, Inc.
|
Ohio
|
|
Leatherman
Partnership 89-1, Inc.
|
Ohio
|
|
Leatherman
Partnership 89-2, Inc.
|
Ohio
|
|
Long
Term Care - Michigan, Inc.
|
Michigan
|
|
Long
Term Care - North Carolina, Inc.
|
North
Carolina
|
|
Long
Term Care Associates - Illinois, Inc.
|
Illinois
|
|
Long
Term Care Associates - Indiana, Inc.
|
Indiana
|
|
Long
Term Care Associates - Texas, Inc.
|
Texas
|
|
Meridian
Arms Land, Inc.
|
Ohio
|
|
NRS
Ventures, LLC
|
Kentucky
|
|
OHI
(Connecticut), Inc.
|
Connecticut
|
|
OHI
(Florida), Inc.
|
Florida
|
|
OHI
(Illinois), Inc.
|
Illinois
|
|
OHI
(Indiana), Inc.
|
Indiana
|
|
OHI
(Iowa), Inc.
|
Iowa
|
|
OHI
(Kansas), Inc.
|
Kansas
|
|
OHI
Asset (CA), LLC
|
Delaware
|
|
OHI
Asset (CT) Lender, LLC
|
Delaware
|
|
OHI
Asset (FL), LLC
|
Delaware
|
|
OHI
Asset (ID), LLC
|
Delaware
|
|
OHI
Asset (IN), LLC
|
Delaware
|
|
OHI
Asset (LA), LLC
|
Delaware
|
|
OHI
Asset (MI/NC), LLC
|
Delaware
|
|
OHI
Asset (MO), LLC
|
Delaware
|
|
OHI
Asset (OH), LLC
|
Delaware
|
|
OHI
Asset (OH) Lender, LLC
|
Delaware
|
|
OHI
Asset (OH) New Philadelphia, LLC
|
Delaware
|
|
OHI
Asset (PA), LLC
|
Delaware
|
|
OHI
Asset (PA) Trust
|
Maryland
|
|
OHI
Asset (TX), LLC
|
Delaware
|
|
OHI
Asset II (CA), LLC
|
Delaware
|
|
OHI
Asset II (PA) Trust
|
Maryland
|
|
OHI
Asset II (TX), LLC
|
Delaware
|
|
OHI
Asset III (PA) Trust
|
Maryland
|
|
OHI
Asset, LLC
|
Delaware
|
|
OHI
of Kentucky, Inc.
|
Maryland
|
|
OHI
of Texas, Inc.
|
Maryland
|
|
OHI
Sunshine, Inc.
|
Florida
|
|
OHIMA,
Inc.
|
Massachusetts
|
|
Omega
(Kansas), Inc.
|
Kansas
|
|
Omega
Acquisition Facility I, LLC
|
Delaware
|
|
Omega
TRS I, Inc.
|
Maryland
|
|
Orange
Village Care Center, Inc.
|
Ohio
|
|
OS
Leasing Company
|
Kentucky
|
|
Parkview
- Skilled Nursing, Inc.
|
Texas
|
|
Pavillion
North, LLP
|
Pennsylvania
|
|
Pavillion
North Partners, Inc.
|
Pennsylvania
|
|
Pavillion
Nursing Center North, Inc.
|
Pennsylvania
|
|
Pine
Texarkana Healthcare Associates, Inc.
|
Texas
|
|
Reunion
Texarkana Healthcare Associates, Inc.
|
Texas
|
|
San
Augustine Healthcare Associates, Inc.
|
Texas
|
|
Skilled
Nursing - Gaston, Inc.
|
Indiana
|
|
Skilled
Nursing - Herrin, Inc.
|
Illinois
|
|
Skilled
Nursing - Hicksville, Inc.
|
Ohio
|
|
Skilled
Nursing - Paris, Inc.
|
Illinois
|
|
South
Athens Healthcare Associates, Inc.
|
Texas
|
|
Sterling
Acquisition Corp.
|
Kentucky
|
|
Sterling
Acquisition Corp. II
|
Kentucky
|
|
St.
Mary’s Properties,Inc.
|
Ohio
|
|
Texas
Lessor - Stonegate GP, Inc.
|
Maryland
|
|
Texas
Lessor - Stonegate Limited, Inc.
|
Maryland
|
|
Texas
Lessor - Stonegate, L.P.
|
Maryland
|
|
Texas
Lessor - Treemont, Inc.
|
Maryland
|
|
The
Suburban Pavilion, Inc.
|
Ohio
|
|
Washington
Lessor - Silverdale, Inc.
|
Maryland
|
|
Waxahachie
Healthcare Associates, Inc.
|
Texas
|
|
West
Athens Healthcare Associates, Inc.
|
Texas
|
|
Wilcare,
LLC
|
Ohio
|
EXHIBIT
A
Form
of
Registration Rights Agreement
EXHIBIT
B-1
Form
of
Opinion of Powell Goldstein, LLP
(i) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Maryland, with the requisite
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Final Memorandum, and to execute
and
deliver the Purchase Agreement and to issue, sell and deliver the Securities
as
contemplated by the Purchase Agreement.
(ii) Each
of
the Subsidiary Guarantors identified on Schedule A hereto (the “Schedule A
Guarantors”) has been duly formed and is validly existing as a corporation or
limited liability company in good standing in its jurisdiction of organization
as set forth on Schedule A. The Company or direct or indirect subsidiaries
of the Company are the sole shareholder or members, as the case may be, of
the
Schedule A Guarantors. All of the shares of capital stock or membership
interests, as the case may be, in the Schedule A Guarantors are validly issued
and, to the knowledge of such counsel, no options, warrants or other rights
to
purchase, agreements or other obligations to issue or other rights to convert
any obligations into shares of capital stock or membership interests, as
the
case may be, or other ownership interests in the Schedule A Guarantors are
outstanding, other than as provided in the Credit Agreement (as defined in
Schedule C).
(iii) The
Company and the Schedule A Guarantors are qualified to transact business
as
foreign entities and are in good standing in the respective states identified
opposite each such entity’s name on Schedule B, except as otherwise noted
thereon.
(iv) As
of the
date of the Memorandum, the Company’s authorized capital stock consisted of (a)
100,000,000 shares of Common Stock, $0.10 par value per share, of which
56,695,022 shares
were outstanding, (b) 20,000,000 shares of Preferred Stock $1.00 par value
per
share, of which 4,739,500 shares
have been designated as 8.375% Series D Cumulative Redeemable Preferred Stock
and were outstanding. The issued and outstanding shares of capital stock
of the
Company are not subject to statutory preemptive rights, preemptive rights
under
the Company’s Articles of Incorporation or Bylaws, or to our knowledge,
contractual preemptive rights, rights of first refusal, or other rights to
purchase or subscribe for shares of capital stock of the Company arising
under
any contract or agreement which the Company filed as an exhibit to any document
incorporated by reference in the Final Memorandum, or otherwise known to
us.
(v) The
Company has the requisite corporate power and authority to execute, deliver
and
perform each of its obligations under the Notes, the Exchange Notes and the
Private Exchange Notes; the Notes are in the form contemplated by the Indenture;
the Notes, the Exchange Notes and the Private Exchange Notes have each been
duly
and validly authorized for issuance and the Notes have been executed by the
Company and, assuming the due authentication by the Trustee in accordance
with
the provisions of the Indenture and, in the case of the Notes, and the delivery
to and payment for by the Initial Purchasers in accordance with the terms
of the
Purchase Agreement, constitute valid and binding obligations of the Company,
in
each case entitled to the benefits of the Indenture, and enforceable against
the
Company in accordance with their terms, except that the enforcement thereof
may
be subject to (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may
be brought.
(vi) Each
of
the Schedule A Guarantors has the requisite power and authority to execute,
deliver and perform each of its obligations under the Guarantees, the guarantees
of the Exchange Notes and the Guarantees of the Private Exchange Notes; the
Guarantees are, and the guarantees of the Exchange Notes and the Private
Exchange Notes when issued will be, in the form contemplated by the Indenture;
the Guarantees have been duly and validly authorized, executed and delivered
by
each of the Schedule A Guarantors and, assuming the Notes have been
authenticated by the Trustee in accordance with the provisions of the Indenture,
constitute valid and binding obligations of Sterling Acquisition Corp. (the
“Kentucky Guarantor”) and the Schedule A Guarantors; and the guarantees of the
Exchange Notes and the Private Exchange Notes, if any, have been duly and
validly authorized by each of the Schedule A Guarantors for issuance in the
form
contemplated by and in accordance with the terms of, the Indenture and, when
the
guarantees of the Exchange Notes and the Private Exchange Notes, if any,
are
executed by the Kentucky Guarantor and the Schedule A Guarantors and the
Exchange Notes and the Private Exchange Notes, if any, are authenticated
by the
Trustee in accordance with the provisions of the Indenture and issued in
exchange for the guarantees of the Notes in accordance with the Indenture,
will
constitute valid and binding obligations of each of the Kentucky Guarantor
and
the Schedule A Guarantors, in each case entitled to the benefits of the
Indenture and enforceable against such Schedule A Guarantor in accordance
with
their terms, subject to (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may
be brought.
(vii) The
Company and each of the Schedule A Guarantors has the requisite corporate
or
organizational power and authority to execute, deliver and perform its
obligations under the Indenture; the Indenture meets the requirements for
qualification under the TIA; the Indenture has been duly and validly authorized,
executed and delivered by the Company and each of the Schedule A Guarantors
and,
assuming the due authorization, execution and delivery by each of the Subsidiary
Guarantors not listed on Schedule A (the “Other Subsidiary Guarantors”) and the
Trustee, constitutes a valid and binding agreement of the Company and each
of
the Kentucky Guarantor and the Schedule A Guarantors, enforceable against
the
Company and each of the Kentucky Guarantor and the Schedule A Guarantors
in
accordance with its terms, except that the enforcement thereof may be subject
to
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(viii) The
Company and each of the Schedule A Guarantors has the requisite corporate
or
organizational power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement; the Registration Rights
Agreement has been duly and validly authorized, executed and delivered by
the
Company and each of the Schedule A Guarantors and, assuming the due
authorization, execution and delivery by each of the Kentucky Guarantor and
the
Initial Purchasers, constitutes a valid and binding agreement of the Company
and
each of the Kentucky Guarantor and Schedule A Guarantors, enforceable against
the Company and each of the Kentucky Guarantor and Schedule A Guarantors
in
accordance with its terms, except that (A) the enforcement thereof
may be
subject to (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may
be brought and (B) any rights to indemnity or contribution thereunder
may
be limited by federal and state securities laws and public policy
considerations.
(ix) The
Company and each of the Schedule A Guarantors has the requisite corporate
or
organizational power and authority to execute, deliver and perform its
obligations under the Purchase Agreement and to consummate the transactions
contemplated thereby; the Purchase Agreement and the consummation by the
Company
and each of the Schedule A Guarantors of the transactions contemplated thereby
have been duly authorized by the Company and each of the Schedule A Guarantors;
the Purchase Agreement has been duly and validly executed and delivered by
the
Company and each of the Schedule A Guarantors.
(x) Each
document incorporated by reference in the Final Memorandum, at the time such
document was filed with the Securities and Exchange Commission (“SEC”), or if
amended, supplemented, or superseded by the filing of a subsequent filing
with
the SEC, as of the date of such subsequent filing, complied as to form, in
all
material respects, with the applicable requirements of the Act and the Exchange
Act (except as to the financial statements and schedules, and other financial
data derived therefrom, contained in such documents, as to which such counsel
need express no opinion).
(xi) No
approval, authorization, consent or order of or filing with any federal or
state
governmental 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 Securities or the consummation by the Company
or any of the Subsidiary Guarantors of the transactions contemplated hereby
other than which has been effected and any necessary registration or
qualification under the securities or blue sky laws of applicable
jurisdictions.
(xii) The
execution, delivery and performance of the Purchase Agreement, the Indenture,
the Registration Rights Agreement, the Securities and the Guarantees by the
Company and the Subsidiary Guarantors, the sale of the Securities by the
Company
and the consummation of the transactions contemplated by the Purchase Agreement
do not and will not, (a) result in any breach or violation by the
Company
or any of the Subsidiary Guarantors of or constitute a default by the Company
or
any of the Subsidiary Guarantors 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) (x) the
Company’s
or any Subsidiary Guarantor’s organizational documents, (y) 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,
in each case identified on Schedule C hereto to which the Company
or any of
its Subsidiaries is a party or by which any of them or any of their respective
Properties may be bound or (z) any law, rule or regulation to which
the
Company or, to our knowledge, any Subsidiary Guarantor is subject, or any
decree, judgment or order known to us of any court or governmental authority
binding upon the Company or any Subsidiary Guarantor or their respective
properties or (b) result in the creation or imposition of any lien,
charge,
claim or encumbrance upon any Property, except in the case of
clauses (a) (y) and (b), such matters as would not individually
or in
the aggregate have a Material Adverse Effect.
(xiii) The
Purchase Agreement, the Indenture, the Securities, the Guarantees and the
Registration Rights Agreement conform in all material respects to the
descriptions thereof contained in the Final Memorandum.
(xiv) Insofar
as such statements constitute a summary of matters of law and regulations
or
legal conclusions, the statements in the Final Memorandum (x) under
the
captions “Description of Other Indebtedness” and (y) under the heading
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations,” insofar as such statements address Medicare and Medicaid, as of the
date of the Final Memorandum and the date hereof fairly summarize the matters
set forth therein in all material respects.
(xv) No
registration under the Act of the Securities is required in connection with
the
sale of the Securities to the Initial Purchasers as contemplated by the Purchase
Agreement and the Final Memorandum or in connection with the initial resale
of
the Securities by the Initial Purchasers in accordance with Section 8
of
the Purchase Agreement, and prior to the commencement of the Exchange Offer
(as
defined in the Registration Rights Agreement) or the effectiveness of the
Shelf
Registration Statement (as defined in the Registration Rights Agreement),
the
Indenture is not required to be qualified under the TIA, in each case assuming
(i) (A) that the purchasers who buy such Notes in the initial
resale
thereof are qualified institutional buyers as defined in Rule 144A
promulgated under the Act (“QIBs”) or (B) that the offer or sale of the
Securities is made in an offshore transaction as defined in Regulation S,
(ii) the accuracy of the Initial Purchasers’ representations in
Section 8 of the Purchase Agreement and those of the Company contained
in
the Purchase Agreement regarding the absence of a general solicitation in
connection with the sale of such Securities to the Initial Purchasers and
the
initial resale thereof and (iii) the due performance by the Initial
Purchasers of the agreements set forth in Section 8 of the Purchase
Agreement.
(xvi) Neither
the consummation of the transactions contemplated by the Purchase Agreement
nor
the sale, issuance, execution or delivery of the Securities will violate
Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
We
are
not aware of any litigation, actions, suits, or proceedings, in any such
case
whether pending or overtly threatened, against the Company or any of the
Subsidiary Guarantors which are required to be disclosed in the Final Memorandum
but are not so disclosed.
We
have
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company
and representatives of the Initial Purchasers at which the contents of the
Final
Memorandum were discussed. Except as and to the extent expressly stated in
paragraphs (xiii) and (xiv) above, and notwithstanding this paragraph,
we
have not independently verified and are not passing upon, and do not assume
any
responsibility for, the accuracy, completeness or fairness of the information
contained in the Final Memorandum. Based upon the participation and discussions
described above, however, and relying as to materiality to the extent we
have
deemed appropriate on the information provided by the Company or certificates
of
officers and other representatives of the Company, no facts have come to
our
attention that cause us to believe that (i) the Final Memorandum,
as of its
date, or the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we expresses no view with respect to the financial statements and
schedules, and other financial data derived therefrom) or (ii) there
are
any affiliate transactions, contracts, licenses, agreements, leases or documents
of a character which are required to be filed as an exhibit to any documents
incorporated by reference therein which have not been filed as so
required.
Schedule
A
Schedule
A Guarantors
|
Subsidiary
Name
|
State
of
Formation
|
|
OHI
Asset (CA), LLC
|
Delaware
|
|
OHI
Asset (CT) Lender, LLC
|
Delaware
|
|
OHI
Asset (FL), LLC
|
Delaware
|
|
OHI
Asset (ID), LLC
|
Delaware
|
|
OHI
Asset (LA), LLC
|
Delaware
|
|
OHI
Asset (MI/NC), LLC
|
Delaware
|
|
OHI
Asset (MO), LLC
|
Delaware
|
|
OHI
Asset (OH), LLC
|
Delaware
|
|
OHI
Asset (OH) Lender, LLC
|
Delaware
|
|
OHI
Asset (OH) New Philadelphia, LLC
|
Delaware
|
|
OHI
Asset (PA), LLC
|
Delaware
|
|
OHI
Asset (TX), LLC
|
Delaware
|
|
OHI
Asset, LLC
|
Delaware
|
|
OHI
Asset II (CA), LLC
|
Delaware
|
|
OHI
asset II (TX), LLC
|
Delaware
|
|
Omega
Acquisition Facility I, LLC
|
Delaware
|
|
Arizona
Lessor - Infinia, Inc.
|
Maryland
|
|
Colorado
Lessor - Conifer, Inc.
|
Maryland
|
|
Delta
Investors I, LLC
|
Maryland
|
|
Delta
Investors II, LLC
|
Maryland
|
|
Florida
Lessor - Crystal Springs, Inc.
|
Maryland
|
|
Florida
Lessor - Emerald, Inc.
|
Maryland
|
|
Florida
Lessor - Five Facilities, Inc.
|
Maryland
|
|
Florida
Lessor - Meadowview, Inc.
|
Maryland
|
|
Georgia
Lessor - Bonterra/Parkview, Inc.
|
Maryland
|
|
Indiana
Lessor - Jeffersonville, Inc.
|
Maryland
|
|
Indiana
Lessor - Wellington Manor, Inc.
|
Maryland
|
|
OHI
Asset (PA) Trust
|
Maryland
|
|
OHI
Asset II (PA) Trust
|
Maryland
|
|
OHI
Asset III (PA) Trust
|
Maryland
|
|
Omega
TRS I, Inc.
|
Maryland
|
|
Texas
Lessor - Stonegate GP, Inc.
|
Maryland
|
|
Texas
Lessor - Stonegate Limited, Inc.
|
Maryland
|
|
Texas
Lessor - Stonegate, L.P.
|
Maryland
|
Schedule
B
Foreign
Qualification
|
Subsidiary
Name
|
Jurisdictions
|
|
OHI
Asset (CA), LLC
|
California
|
|
OHI
Asset (CT) Lender, LLC
|
None
|
|
OHI
Asset (FL), LLC
|
Florida
|
|
OHI
Asset (ID), LLC
|
Idaho
|
|
OHI
Asset (LA), LLC
|
Louisiana/Texas
|
|
OHI
Asset (MI/NC), LLC
|
Michigan/North
Carolina
|
|
OHI
Asset (MO), LLC
|
Missouri
|
|
OHI
Asset (OH), LLC
|
Ohio
|
|
OHI
Asset (OH) Lender, LLC
|
None
|
|
OHI
Asset (OH) New Philadelphia, LLC
|
Ohio
|
|
OHI
Asset (PA), LLC
|
Ohio
|
|
OHI
Asset (TX), LLC
|
Texas
|
|
OHI
Asset, LLC
|
Alabama/North
Carolina/ Tennessee/ Washington
|
|
OHI
Asset II (CA), LLC
|
California
|
|
OHI
Aset II (TX), LLC
|
Texas
|
|
Omega
Acquisition Facility I, LLC
|
None
|
|
Arizona
Lessor - Infinia, Inc.
|
Arizona
|
|
Colorado
Lessor - Conifer, Inc.
|
Colorado
|
|
Delta
Investors I, LLC
|
California/
Idaho Massachusetts/ Ohio/ West Virginia
|
|
Delta
Investors II, LLC
|
California/
North Carolina/ Ohio/ Washington/ West
Virginia
|
Schedule
C
Identified
Documents
1. All
items
filed as exhibits to documents incorporated by reference into the Final
Memorandum except (a) items filed as exhibits to Incorporated Documents
filed before the filing of the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2004 (the “Annual Report”) and which are not
incorporated by reference as an exhibit to the Annual Report and (b) Exhibits
3.1 through 3.7 to the Annual Report, and (c) agreements that have been
terminated on or prior to, or otherwise no longer in effect as of, the Closing
Date.
2. Amended
and Restated Master Lease Agreement dated as of December 1, 2003,
as
amended on March 1, 2004, by and among Delta Investors I, LLC, Delta
Investors II, LLC, OHI Asset, LLC and OHI Asset (CA), LLC as lessor entities
(“Lessors”), Care Enterprises, Inc., Circleville Healthcare Corp., Beckley
Health Care Corp., Putnam Health Care Corp., Care Enterprises West, Braswell
Enterprises, Inc., Meadowbrook Rehabilitation Center, Regency Rehab Hospitals,
Inc., Dunbar Health Care Corp., Marion Health Care Corp., Salem Health Care
Corp., Regency-North Carolina, Inc., Coalinga Rehabilitation Center, Fullerton
Rehabilitation Center, Sunbridge Healthcare Corporation, San Bernardino
Rehabilitation Hospital, Inc., Shandin Hills Rehabilitation Center, and
Regency-Tennessee, Inc. as lessee entities (“Lessees”), Omega Healthcare
Investors, Inc., and Sun Healthcare Group, Inc., as guarantor, and related
Amended and Restated Security Agreement by and among Lessors and Lessees,
and
Amended and Restated Guaranty executed by Sun Healthcare Group, Inc. as
guarantor in favor of Lessors and Omega Healthcare Investors, Inc.
3. Consolidated
Amended and Restated Master Lease dated November 8, 2000 by and between Sterling
Acquisition Corp. as landlord, and Diversicare Leasing Corp. as tenant, as
amended by First Amendment to Consolidated Amended and Restated Master Lease
dated September 30, 2001 between landlord and tenant, and Master Sublease
dated
November 8, 2000 by and between Diversicare Leasing Corp. as sublessor and
Sterling HealthCare Management, Inc., as sublessee with respect to two
facilities located in West Virginia.
4. Multiple
Facilities Lease dated February 28, 2003 by and between Florida Lessor — Five
Facilities, Inc. as lessor and Alpha Health Care Properties, LLC, as lessee,
and
Multiple Facilities Lease dated July 1, 2003 by and between OHI Asset (FL),
LLC
as lessor and Alpha Health Care Properties, LLC as lessee.
5. Master
Lease dated September 30, 2003 by and between OHI Asset (CA), LLC as lessor
and
Permunitum LLC as lessee.
6. Credit
Agreement dated as of March 22, 2004, by and among Omega Healthcare
Investors, Inc., the subsidiary guarantors party thereto, the lenders party
thereto and Bank of America, N.A., as administrative agent, as amended from
time
to time (the “Credit Agreement”).
7. Purchase
Agreement, dated as of October 28, 2004 effective November 1, 2004, among
Omega,
OHI Asset (PA) Trust, Guardian LTC Management, Inc., and the licensees named
therein.
EXHIBIT
B-2
Form
of
Tax Opinion of Powell Goldstein, LLP
We
have
acted as special counsel to Omega Healthcare Investors, Inc., a Maryland
corporation (the “Company”), in connection with the preparation of the Offering
Memorandum relating to the issuance by the Company of up to $50,000,000
aggregate principal amount of its 7% Senior Notes due 2014 (the “Offering
Memorandum”).
In
rendering our opinion, we have examined and relied on originals or copies
certified or otherwise identified to our satisfaction of (i) the Articles
of
Incorporation of the Company and the Articles of Amendment, Articles of
Amendment and Restatement, and Articles Supplementary thereto, (ii) the Offering
Memorandum, and (iii) such other documents, certificates, and records as
we have
deemed necessary or appropriate. We also have relied upon factual statements
and
representations made to us by representatives of the Company and others that
are
set forth in a certificate executed and provided to us by the Company (the
“Officer’s Certificate”). We have also relied on a letter from Explorer
Holdings, L.P., regarding the ownership of the stock of the Company by Explorer
Holdings, L.P., Explorer Holdings Level II, L.P., and Hampstead Investment
Partners III, L.P. (the “Representation Letter”). For purposes of this opinion,
we have assumed the validity and accuracy of the documents, certificates
and
records set forth above, and that the statements and representations made
therein are and will remain true and complete. We also have assumed that
the
Offering Memorandum and such other documents, certificates and records and
that
the statements as to factual matters contained in the Offering Memorandum
are
true, correct and complete and will continue to be true, correct and complete
through the completion of the transactions contemplated therein.
In
our
examination, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted
to us
as originals, the conformity to original documents of all documents submitted
to
us as certified, conformed or photo copies, and the authenticity of the
originals of such copies. In making our examination of documents executed,
or to
be executed, by the parties indicated therein, we have assumed that each
party
(other than the Company) has, or will have, the power, corporate or other,
to
enter into and perform all obligations thereunder and we have also assumed
the
due authorization by all requisite action, corporate or other, and the execution
and delivery by such parties and the validity and binding effect thereof
on such
parties. All of the documents we have reviewed will be complied with without
waiver. Finally, in connection with the opinions rendered below, we have
assumed
that:
(i) During
its taxable year ended December 31, 1992 and in each subsequent taxable year
to
present, the Company has operated and will continue to operate in such a
manner
that makes and will continue to make the representations contained in the
Officer’s Certificate true for such years;
(ii) Explorer
Holdings, L.P., Explorer Holdings Level II, L.P., and Hampstead Investment
Partners III, L.P. (collectively “Explorer”) are partnerships for purposes of
Section 544(a)(1) under the Internal Revenue Code of 1986, as amended (the
“Code”);
(iii) Yale
University and The Board of Trustees of Leland Stanford Junior University
are
organizations described in Section 170(b)(1)(A)(ii) of the Code;
and
In
rendering our opinion, we have considered the applicable provisions of the
Code,
Treasury Department regulations promulgated thereunder, pertinent judicial
authorities, interpretive rulings of the Internal Revenue Service and such
other
authorities as we have considered relevant, all in effect as of the date
hereof.
It should be noted that statutes, regulations, judicial decisions and
administrative interpretations are subject to change at any time (possibly
with
retroactive effect). A change in the authorities or the accuracy or completeness
of any of the information, documents, certificates, records, statements,
representations, covenants, or assumptions on which our opinion is based
could
affect our conclusions.
Based
on
the foregoing, in reliance thereon and subject thereto and to the limitations
stated below, it is our opinion that:
(a) From
and
including the Company’s taxable year ended December 31, 1992, the Company was
and is organized in conformity with the requirements for, and its method
of
operations as described in the Officer’s Certificate has permitted and will
permit the Company to meet the requirements for, qualification and taxation
as a
real estate investment trust (“REIT”) under the Code, and, based on the
Company’s proposed method of operations as described in the Offering Memorandum,
the Company will continue to meet such requirements after consummation of
the
transactions contemplated in the Offering Memorandum.
(b) The
discussion in the Offering Memorandum under the heading “CERTAIN FEDERAL INCOME
TAX CONSIDERATIONS,” fairly and accurately summarizes the federal income tax
considerations that are likely to be material to a holder of the Company’s
securities being offered.
Except
as
set forth above, we express no opinion to any party as to the tax consequences,
whether federal, state, local or foreign, of the offerings discussed in the
Offering Memorandum or of any transaction related thereto or contemplated
thereby. This opinion is expressed as of the date hereof, and we are under
no
obligation to advise you of, supplement or to revise our opinion to reflect,
any
changes (including changes that have retroactive effect) in applicable law
or
any information, document, certificate, record, statement, representation,
covenant or assumption relied upon herein that becomes incorrect or
untrue.
Very
truly yours,
/s/
Powell Goldstein LLP
EXHIBIT
C
Kentucky
Subsidiary Guarantor Opinion
1. Sterling
Acquisition Corp (“Sterling”) is a corporation duly organized and validly
existing under the laws of the Commonwealth of Kentucky and is in good standing
as that term is defined in 30 KAR 1:010.
2. Based
solely on the Officer’s Certificate and our review of the Minute Book: (i) the
Issuer is the sole shareholder of Sterling, (ii) all of the shares of capital
stock in Sterling are validly issued and (iii) no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights
to
convert any obligations into shares of capital stock or other ownership
interests in Sterling are outstanding.
3. Based
solely on a certificate provided by the Secretary of State of Tennessee,
Sterling is qualified as of the date of such certificate to transact business
as
a foreign corporation.
4. Sterling
has the corporate power and authority to execute, deliver and perform its
obligations under the Guarantee and the guarantees of the Exchange Notes
and the
Private Exchange Notes; the Guarantee has been duly and validly authorized,
executed and delivered by Sterling; and the guarantees of the Exchange Notes
and
the Private Exchange Notes, if any, have been duly and validly authorized
by
Sterling.
5. Sterling
has the corporate power and authority to execute, deliver and perform its
obligations under the Indenture and the Indenture has been duly and validly
authorized, executed and delivered by Sterling.
6. Sterling
has the corporate power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement and the Registration
Rights
Agreement has been duly and validly authorized, executed and delivered by
Sterling.
7. Sterling
has the corporate power and authority to execute, deliver and perform its
obligations under the Purchase Agreement and to consummate the transactions
contemplated thereby and the Purchase Agreement has been duly and validly
authorized, executed and delivered by Sterling and the consummation by Sterling
of the transactions contemplated thereby has been duly and validly authorized
by
Sterling.
This
Opinion is limited to the specific issues addressed herein, and no opinion
may
be inferred beyond that expressly stated herein.
Except
for certificates and representations which have obtained from Sterling
concerning the facts underlying the opinions expressed above, we have not
undertaken any independent investigation to determine the existence or absence
of such facts. Further, we call your attention to the fact that we have not
in
the past acted as counsel to Sterling, have made no special inquiry of Sterling,
and are unaware of the existence of any specific factual matters pertaining
to
Sterling, which could affect the opinions set forth herein.
This
Opinion is limited to the law (excluding the principles of conflict of laws)
of
the Commonwealth of Kentucky and we do not express any opinion concerning
any
other law.