S-11/A: Registration statement for securities to be issued by real estate companies
Published on March 27, 2007
Exhibit
1.1
OMEGA
HEALTHCARE INVESTORS, INC.
[
] Shares
Common,
Stock
($0.10
par value per Share)
UNDERWRITING
AGREEMENT
March
[ ], 2007
UNDERWRITING
AGREEMENT
March
[ ], 2007
UBS
Securities LLC
[
]
[
]
[
]
as
Managing Underwriters
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
Omega
Healthcare Investors, Inc., a real estate investment trust organized under
the
laws of the State of Maryland (the “Company”), proposes to issue and sell to the
underwriters named in Schedule
A
annexed
hereto (the “Underwriters”),
for
whom you are acting as representative, an aggregate of
[
] shares (the “Firm
Shares”)
of
common stock, $0.10 par value per share (the “Common
Stock”),
of
the Company. In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriters the option to purchase from
the Company up to an additional
[
] shares of Common Stock (the “Additional
Shares”).
The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the “Shares.”
The
Shares are described in the Prospectus which is referred to below.
The
Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Act”),
with
the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form S-11 (File No. 333-141242) under the Act,
including a prospectus, relating to the Shares.
Except
where the context otherwise requires, “Registration
Statement,”
as
used herein, means the registration statement, as amended at the time of such
registration statement’s effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the “Effective
Time”),
including (i) all documents filed as a part thereof, (ii) any information
contained in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant to Rule 430A
or Rule 430C under the Act, to be part of the registration statement at the
Effective Time, and (iii) any registration statement filed to register the
offer
and sale of Shares pursuant to Rule 462(b) under the Act.
The
Company has furnished to you, for use by the Underwriters and by dealers in
connection with the offering of the Shares, copies of one or more preliminary
prospectuses relating to the Shares. Except where the context otherwise
requires, “Preliminary
Prospectus,”
as
used herein, means each such preliminary prospectus, in the form so
furnished.
Except
where the context otherwise requires, “Prospectus,”
as
used herein, means the prospectus, relating to the Shares, filed by the Company
with the Commission pursuant to Rule 424(b) under the Act on or before the
second business day after the date hereof (or such earlier time as may be
required under the Act), or, if no such filing is required, the final prospectus
included in the Registration Statement at the time it became effective under
the
Act, in each case in the form furnished by the Company to you for use by the
Underwriters and by dealers in connection with the offering of the
Shares.
“Permitted
Free Writing Prospectuses,”
as
used herein, means the documents listed on Schedule
B
attached
hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act) (each such road show, an
“Electronic
Road Show”).
The
Underwriters have not offered or sold and will not offer or sell, without the
Company’s consent, any Shares by means of any “free writing prospectus” (as
defined in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the Act, other
than
a Permitted Free Writing Prospectus.
“Disclosure
Package,”
as
used herein, means any Preliminary Prospectus together with any combination
of
one or more of the Permitted Free Writing Prospectuses, if any.
As
used
in this Agreement, “business
day”
shall
mean a day on which the New York Stock Exchange (the “NYSE”)
is
open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement. The term “or,” as used herein, is not
exclusive.
The
Company and the Underwriters agree as follows:
1. Sale
and Purchase.
Upon
the basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule
A
attached
hereto, subject to adjustment in accordance with Section 8
hereof
in each case at a purchase price of $[ ] per Firm Share. The Company is advised
by you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effectiveness of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Firm
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In
addition, the Company hereby grants to the several Underwriters the option
(the
“Over-Allotment
Option”)
to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company, ratably in
accordance with the number of Firm Shares to be purchased by each of them,
all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm
2
Shares,
at the same purchase price per share to be paid by the Underwriters to the
Company for the Firm Shares. The Over-Allotment Option may be exercised by
UBS
Securities LLC (“UBS”)
on
behalf of the several Underwriters at any time and from time to time on or
before the thirtieth day following the date of the Prospectus, by written notice
to the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the Over-Allotment Option is being exercised and the date
and
time when the Additional Shares are to be delivered (any such date and time
being herein referred to as an “additional
time of purchase”);
provided,
however,
that no
additional time of purchase shall be earlier than the “time of purchase” (as
defined below) nor earlier than the second business day after the date on which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule
A
hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as UBS may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8
hereof.
2. Payment
and Delivery.
Payment
of the purchase price for the Firm Shares shall be made to the Company by
Federal Funds wire transfer against delivery of the certificates for the Firm
Shares to you through the facilities of The Depository Trust Company
(“DTC”)
for
the respective accounts of the Underwriters. Such payment and delivery shall
be
made at 10:00 A.M., New York City time, on April [ ], 2007 (unless another
time
shall be agreed to by you and the Company or unless postponed in accordance
with
the provisions of Section 8
hereof).
The time at which such payment and delivery are to be made is hereinafter
sometimes called the “time
of purchase.”
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall
specify.
Payment
of the purchase price for the Additional Shares shall be made at the additional
time of purchase in the same manner and at the same office as the payment for
the Firm Shares. Electronic transfer of the Additional Shares shall be made
to
you at the additional time of purchase in such names and in such denominations
as you shall specify.
Deliveries
of the documents described in Section 6
hereof
with respect to the purchase of the Shares shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP at Four Times Square, New York, New
York, 10036, at 9:00 A.M., New York City time, on the date of the closing of
the
purchase of the Firm Shares or the Additional Shares, as the case may
be.
3. Representations
and Warranties.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) the
Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and
sale
of Shares pursuant to Rule 462(b) under the Act, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New
York
City time, on the date of determination of the public offering price for the
Shares; no stop order of the
3
Commission
preventing or suspending the use of any Preliminary Prospectus or Permitted
Free
Writing Prospectus, or the effectiveness of the Registration Statement, has
been
issued, and no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are contemplated by the Commission;
(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares, will comply, in all material respects, with the requirements of the
Act;
the conditions to the use of Form S-11 in connection with the offering and
sale
of the Shares as contemplated hereby have been satisfied; the Registration
Statement did not, as of the Effective Time, contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; each Preliminary
Prospectus complied, at the time it was filed with the Commission, and complies
as of the date hereof, in all material respects with the requirements of the
Act; at no time during the period that begins on the earlier of the date of
such
Preliminary Prospectus and the date such Preliminary Prospectus was filed with
the Commission and ends at the time of purchase did or will any Preliminary
Prospectus, as then amended or supplemented, include an untrue statement of
a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not misleading; the
Prospectus will comply, as of its date, the date that it is filed with the
Commission, the time of purchase, each additional time of purchase, if any,
and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, in all material respects,
with the requirements of the Act (including, without limitation, Section 10(a)
of the Act); at no time during the period that begins on the earlier of the
date
of the Prospectus and the date the Prospectus is filed with the Commission
and
ends at the later of the time of purchase, the latest additional time of
purchase, if any, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares did or will the Prospectus, as then amended or supplemented, include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; at no time during the period that begins
on the date of such Permitted Free Writing Prospectus and ends at the time
of
purchase did or will any Permitted Free Writing Prospectus include an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided,
however,
that
the Company makes no representation or
4
warranty
in this Section 3(b)
with
respect to any statement contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus
in reliance upon and in conformity with information concerning an Underwriter
and furnished in writing by or on behalf of such Underwriter through you to
the
Company expressly for use in the Registration Statement, such Preliminary
Prospectus, the Prospectus or such Permitted Free Writing
Prospectus;
(c) prior
to
the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Shares, in each case other than the Preliminary
Prospectuses and the Permitted Free Writing Prospectuses, if any;
the
Company has not, directly or indirectly, prepared, used or referred to any
Permitted Free Writing Prospectus except in compliance with Rules 164 and 433
under the Act; assuming that such Permitted Free Writing Prospectus is
accompanied by the most recent Preliminary Prospectus or the Prospectus, as
the
case may be, and that such Permitted Free Writing Prospectus is so sent or
given
after the Registration Statement was filed with the Commission (and after such
Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d)
under
the Act, filed with the Commission), the sending or giving, by any Underwriter,
of any Permitted Free Writing Prospectus will satisfy the provisions of Rule
164
and Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164);
the
Preliminary Prospectus dated March [ ], 2007 is a prospectus that, other than
by
reason of Rule 433 or Rule 431 under the Act, satisfied the requirements of
Section 10 of the Act, including a price range where required by rule; neither
the Company nor the Underwriters are disqualified, by reason of subsection
(f)
or (g) of Rule 164 under the Act, from using, in connection with the offer
and
sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under
the Act) pursuant to Rules 164 and 433 under the Act; the Company is not an
“ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act with respect
to the offering of the Shares contemplated by the Registration Statement; the
parties hereto agree and understand that the content of any and all “road shows”
(as defined in Rule 433 under the Act) related to the offering of the Shares
contemplated hereby is solely the property of the Company;
(d) as
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement,
the
Preliminary Prospectuses and the Prospectus entitled “Capitalization” and
“Description of capital stock” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus), and, as of the time of
purchase and any additional time of purchase, as the case may be, the Company
shall have an authorized and outstanding capitalization as set forth in the
sections of the Registration Statement, the Preliminary Prospectuses and the
Prospectus entitled “Capitalization” and “Description of capital stock” (and any
similar sections or information, if any, contained in any Permitted Free Writing
Prospectus) (subject, in each case, to the issuance of shares of Common Stock
upon exercise of stock options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus and the grant of options under existing stock
option plans described in
5
the
Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus); all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable, have been issued in compliance with all
federal and state securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right; no
further approval or authority of the stockholders or the Board of Directors
of
the Company are required for the issuance and sale of the Shares;
(e) the
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Maryland, with full corporate power
and
authority to acquire, own, lease and operate its properties, and to lease the
same to others, and to conduct its business as described in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, to execute and deliver this Agreement and to
issue, sell and deliver the Additional Shares as contemplated herein; and the
Company is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions, except
where the failure to be in compliance would not, individually or in the
aggregate, either (i) have a material adverse effect on the business,
properties, financial condition, results of operation or prospects of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole or (ii)
prevent consummation of the transactions contemplated hereby (the occurrence
of
such effect or such prevention described in the foregoing clauses (i) and (ii)
being herein referred to as a “Material
Adverse Effect”);
(f) 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;
(g) the
Company has no subsidiaries (as defined under the Act) other than those listed
in Schedule
C
attached
hereto (collectively, the “Subsidiaries”);
the
Company owns all of the issued and outstanding capital stock of each of the
Subsidiaries; other than the capital stock of the Subsidiaries, the Company
does
not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in
any
firm, partnership, joint venture, association or other entity; complete and
correct copies of the articles of incorporation and the bylaws of the Company
and all amendments thereto have been delivered to you, and, except as set forth
in the exhibits to the Registration Statement, no changes therein or to the
articles of incorporation and the bylaws of the Subsidiaries will be made on
or
after the date hereof or on or before the time of purchase or, if later, any
additional time of purchase; each Subsidiary has been duly incorporated and
is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power and authority
to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus; each Subsidiary is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the ownership or leasing of its properties or the
conduct of its business
6
requires
such qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, have a Material Adverse
Effect; each Subsidiary is in compliance in all respects with the laws, orders,
rules, regulations and directives issued or administered by such jurisdictions,
except where the failure to be in compliance would not, individually or in
the
aggregate, have a Material Adverse Effect; all of the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the Company subject
to no security interest, other material encumbrance or adverse claims other
than
security interests, as disclosed in the Prospectus, granted under the Company’s
existing senior credit facility; no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding; and the Company has no “significant subsidiary,”
as that term is defined in Rule 1-02(w) of Regulation S-X under the Act, other
than those listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for
the fiscal year ended December 31, 2006;
(h) the
Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights;
(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and the certificates for the Shares are in due
and
proper form and the holders of the shares will not be subject to personal
liability by reason of being such holders;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time
or
both would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part
of
such indebtedness under) its (i) respective charter or bylaws, or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement
or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or
affected, or (iii) any federal, state, local or foreign law, regulation or
rule,
including, without limitation, the rules and regulations of the NYSE, or any
decree, judgment or order applicable to the Company or any of the Subsidiaries
or any of their respective properties, except in the case of clauses (ii) and
(iii) above, such breaches, violations or defaults as would not individually,
or
in the aggregate, have a Material Adverse Effect; and the execution, delivery
and performance of this Agreement, the
7
issuance
and sale of the Shares and the consummation of the transactions contemplated
hereby (A) will neither conflict with, result in any breach or violation of
or
constitute a default under (nor constitute any event which with notice, lapse
of
time or both would result in any breach or violation of or constitute a default
under or give the holder of any indebtedness (or a person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a part of such indebtedness under) (1) the charter or bylaws of the
Company or any of the Subsidiaries, or (2) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or
any
license, lease, contract or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, or (3) any federal, state or
local law, regulation or rule, including the rules and regulations of the NYSE,
or any decree, judgment or order applicable to the Company or any of the
Subsidiaries, except in the case of clauses (2) above, such breaches, violations
or defaults as would not individually, or in the aggregate, have a Material
Adverse Effect, nor (B) result in the creation or imposition of any lien,
charge, claim or encumbrance upon any of the properties (real and personal
(including, without limitation, mortgage loans and unsecured loans)) described
in the Registration Statement or Prospectus as being owned or leased by the
Company or any of the Subsidiaries (the “Properties”);
(l) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with the NYSE, or approval of the stockholders of the
Company, is required in connection with the issuance and sale of the Shares
or
the consummation by the Company of the transactions contemplated hereby other
than registration of the Shares under the Act, which has been effected, the
listing of the Shares on the NYSE, which has been effected and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or under the rules
and
regulations of the National Association of Securities Dealers, Inc. (the
“NASD”);
(m) except
as
expressly set forth in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus
(i) no
person has the right, contractual or otherwise, to cause the Company to issue
or
sell to it any shares of Common Stock or shares of any other capital stock
or
other equity interests of the Company, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to purchase any shares
of
Common Stock or shares of any other capital stock of or other equity interests
in the Company and (iii) no person has the right to act as an underwriter or
as
a financial advisor to the Company in connection with the offer and sale of
the
Shares, whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or otherwise; no
person has the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital stock
of
or other equity interests in the Company, or to include any such shares or
interests in the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise;
8
(n) each
of
the Company and the Subsidiaries (and, to the Company’s knowledge, each
operator, lessee or sublessee of any Property or portion thereof) (i) has all
necessary licenses, authorizations, consents and approvals and (ii) has made
all
necessary filings required under any federal, state, local or foreign law,
regulation or rule, and (iii) has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order to acquire
and own, lease or sublease, lease to others and conduct its respective business
as described in the Registration Statement or Prospectus, except in the case
of
clauses (i), (ii) and (iii) above, where the failure to have such items, make
such filings or obtain such items would not individually, or in the aggregate,
have a Material Adverse Effect; neither the Company nor any of the Subsidiaries
(nor, to the Company’s knowledge, any such operator, lessee or sublessee) is in
violation of, or in default under, or has received notice of any proceedings
relating to revocation or modification of, any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation
or
rule or any decree, order or judgment applicable to the Company or any of the
Subsidiaries, except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material Adverse
Effect;
(o) all
legal
or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, leases or documents of a character required to be described in
the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(p) there
are
no actions, suits, claims, investigations or proceedings pending or, to the
Company’s knowledge, threatened or contemplated to which the Company or any of
the Subsidiaries or any of their respective directors or officers (or, to the
Company's knowledge, any person from whom the Company or any Subsidiary acquired
any of the Properties (each, a "seller"), or any lessee, sublessee or operator
of any Property or any portion thereof) is or would be a party, or of which
any
of the respective properties or assets of the Company and the Subsidiaries,
or
any Property, is or would be subject at law or in equity, before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency, except any such action, suit, claim, investigation
or
proceeding which would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect;
(q) Ernst
& Young LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is included in the Registration Statement, the
Preliminary Prospectuses and the Prospectus [identify any Permitted Free Writing
Prospectuses containing an audit report], are independent registered public
accountants as required by the Act and by the rules of the Public Company
Accounting Oversight Board;
(r) the
financial statements included in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
9
any,
together with the related notes and schedules, present fairly the consolidated
financial position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations, cash flows and changes in
stockholders’ equity of the Company for the periods specified and have been
prepared in compliance with the requirements of the Act and Exchange Act and
in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved; all pro forma financial statements
or data included in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, comply
with
the requirements of the Act and the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (collectively, the “Exchange
Act”),
and
the assumptions used in the preparation of such pro forma financial statements
and data are reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described therein and the
pro forma adjustments have been properly applied to the historical amounts
in
the compilation of those statements and data; the other financial and
statistical data contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, are accurately presented and prepared in all material respects on a basis
consistent with the financial statements and books and records of the Company;
there are no financial statements (historical or pro forma) that are required
to
be included in the Registration Statement, any Preliminary Prospectus or the
Prospectus 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), not described in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and
the
Prospectus; and all disclosures contained in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, regarding “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply with Regulation
G
of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable;
(s) subsequent
to the respective dates as of which information is given in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or
supplements to the foregoing made after the execution of this Agreement, there
has not been (i) any material adverse change, or any development which could
have a reasonable possibility of giving rise to a prospective material adverse
change, in the business, properties, management, financial condition or results
of operations of the Company and the Subsidiaries taken as a whole, (ii) any
transaction which is material to the Company and the Subsidiaries taken as
a
whole, (iii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any Subsidiary, which is material
to the Company and the Subsidiaries taken as a whole, (iv) any change in the
capital stock (except as the result of the exercise of rights by directors
and
employees under the Company's stock incentive plans described in the Prospectus)
or outstanding indebtedness of the Company or any Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the capital
stock
of the Company or any Subsidiary;
10
(t) the
Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up
Agreement”),
in
the form set forth as Exhibit
A
hereto,
of each of its officers and directors;
(u) neither
the Company nor any Subsidiary is and, after giving effect to the offering
and
sale of the Shares, neither of them will be an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(v) the
Company, and each of the Subsidiaries, has insurable title, and, in the case
of
real property, in fee simple, to the Properties, free and clear of all liens,
claims, mortgages, deeds of trust, restrictions, security interests and other
encumbrances or defects (“Property
Encumbrances”),
except for (x) the leasehold interests of lessees in the Properties of the
Company and the Subsidiaries held under lease (the “Leases”)
and
(y) any other Property Encumbrances that would not, individually or in the
aggregate, have a Material Adverse Effect; and all Property Encumbrances on
or
affecting the Properties which are required to be disclosed in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, are disclosed therein as required;
(w) each
of
the Leases pertaining to the Properties has been duly authorized by the Company
or a Subsidiary, as applicable, and is a valid, subsisting and enforceable
agreement of the Company or such Subsidiary, as applicable, and, to the
Company’s knowledge, each other party thereto, enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors’ rights
generally or general equitable principles;
(x) no
person
has an option or right of first refusal to purchase all or any material portion
of the Property owned by the Company or any interest therein, and to the
Company’s knowledge no such right exists with respect to any Property that the
Company leases (as lessee), except for such options or rights of first refusal
which, if exercised, will not individually or in the aggregate have a Material
Adverse Effect;
(y) to
the
Company’s knowledge, except as disclosed in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, no lessee of any portion of any of the Properties is
in
default under its respective lease, and there is no event which, with notice,
lapse of time or both, would constitute a default under any such lease, except
such defaults that would not, individually or in the aggregate, have a Material
Adverse Effect;
(z) to
the
Company’s knowledge, except as disclosed in the Registration Statement and
Prospectus, no borrower of a Company mortgage loan is in default under its
respective mortgage loan, and there is no event which, with notice, lapse of
time or both, would constitute a default under any such mortgage loan, except
such defaults that would not, individually or in the aggregate, have a Material
Adverse Effect;
11
(aa) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information described
in
the Registration Statement, the Preliminary Prospectuses, the Prospectus and
the
Permitted Free Writing Prospectuses, if any, as being owned or licensed by
them
or which are necessary for the conduct of their respective businesses, except
where the failure to own, license or have such rights would not, individually
or
in the aggregate, have a Material Adverse Effect;
(bb) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice,
except as would not, individually or in the aggregate, have a Material Adverse
Effect; there has been no violation of any federal, state or local law relating
to discrimination in the hiring, promotion or pay of employees, any applicable
wage or hour laws or any provision of the Employee Retirement Income Security
Act of 1974 (“ERISA”)
or the
rules and regulations promulgated thereunder concerning the employees of the
Company or any of the Subsidiaries, except as would not, individually or in
the
aggregate, have a Material Adverse Effect; there is no strike, labor dispute,
slowdown or work stoppage with the employees of the Company or any of the
Subsidiaries that is pending or, to the knowledge of the Company,
threatened;
(cc) the
Company and the Subsidiaries and their respective properties, assets and
operations (and, to the Company’s knowledge, each operator, lessee or sublessee
of any Property or portion thereof) are in compliance with, and the Company
and
each of the Subsidiaries hold all permits, authorizations and approvals required
under, Environmental Laws (as defined below), except to the extent that failure
to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; there are
no
past, present or, to the Company’s knowledge, reasonably anticipated future
events, conditions, circumstances, activities, practices, actions, omissions
or
plans that could reasonably be expected to give rise to any material costs
or
liabilities to the Company or any Subsidiary under, or to interfere with or
prevent compliance by the Company or any Subsidiary with, Environmental Laws,
except as would not, individually or in the aggregate, have a Material Adverse
Effect; except as would not, individually or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of the Subsidiaries, nor, to the
Company’s knowledge, any seller, lessee, sublessee or operator of any Property
or portion thereof or any previous owner thereof, (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or threatened action, suit or proceeding, (iv) is bound
by any judgment, decree or order or (v) has entered into any agreement, in
each
case relating to any alleged violation of any Environmental Law or any actual
or
alleged release or threatened release or cleanup at any location of any
Hazardous Materials (as defined below); and neither the Company nor any of
the
Subsidiaries, nor, to the Company’s knowledge, any seller, lessee, sublessee or
operator of any Property or portion thereof or any previous owner thereof,
has
received from any governmental authority notice of any violation, concerning
the
Properties, of any municipal, state or federal law, rule or regulation or of
any
Environmental Law, except for such violations as have heretofore been cured
and
except
12
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);
(dd) the
Company and the Subsidiaries have (A) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all applicable authorities, all self-regulatory
authorities and all courts and other tribunals (each, an “Authorization”)
necessary to engage in the business conducted by it in the manner described
in
the Prospectus, except as would not, individually or in the aggregate, have
a
Material Adverse Effect and (B) no reason to believe that any governmental
body
or agency, domestic or foreign, is considering limiting, suspending or revoking
any such Authorization, except where any such limitations, suspensions or
revocations would not, individually or in the aggregate, have a Material Adverse
Effect; all such Authorizations are valid and in full force and effect and
the
Company and the Subsidiaries are in compliance with the terms and conditions
of
all such Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such Authorizations, except
for
any invalidity, failure to be in full force and effect or noncompliance with
any
Authorization that would not, individually or in the aggregate, have a Material
Adverse Effect;
(ee) neither
the Company nor any of the Subsidiaries, nor, to the Company’s knowledge, any
seller, lessee, sublessee or operator of any Property or portion thereof, has
received from any governmental authority any written notice of any condemnation
of, or zoning change affecting, the Properties or any portion thereof, and
the
Company does not know of any such condemnation or zoning change which is
threatened, except for such condemnations or zoning changes that, if
consummated, would not, individually or in the aggregate, have a Material
Adverse Effect; and each of the Properties, and the current and intended use
and
occupancy thereof, complies with all applicable zoning laws, ordinances and
regulations, except where such failure does and will not, individually or in
the
aggregate, have a Material Adverse Effect;
(ff) all
tax
returns required to be filed by the Company or any of the Subsidiaries have
been
timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions
to
tax or penalties applicable thereto due or claimed to be due from such entities
have been timely paid, other than those being contested in good faith and for
which adequate reserves have been provided; and to the Company’s knowledge,
there is no tax deficiency which has been asserted against the Company or any
Subsidiary, except any tax deficiency which would not, individually or in the
aggregate, have a Material Adverse
13
Effect;
(gg) each
of
the Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amount as the Company
reasonably deems to be adequate and as are customary in the business in which
they are engaged, except as described in the Prospectus; except as would not,
individually, or in the aggregate, have a Material Adverse Effect, all policies
of insurance insuring the Company and the Subsidiaries or any of their
businesses, assets, employees, officers, directors and trustees are in full
force and effect, and the Company and the Subsidiaries are in compliance with
the terms of such policies in all material respects. Except as would not,
individually or in the aggregate, have a Material Adverse Effect, there are
no
claims by the Company or any of the Subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause;
(hh) neither
the Company nor any of the Subsidiaries has sustained since the date of the
last
audited financial statements included in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus,
any loss or interference with its respective business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, except for such loss
or interference as would not individually, or in the aggregate, have a Material
Adverse Effect;
(ii) 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 any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, or referred to or described
in, or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Company or any Subsidiary
or, to the Company’s knowledge after due inquiry, any other party to any such
contract or agreement, except for such termination or non-renewal as would
not
individually, or in the aggregate, have a Material Adverse Effect;
(jj) the
Company, and each of the Subsidiaries on a consolidated basis, maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is
taken with respect to any differences;
(kk) 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
14
Rule
13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others within those
entities, and such disclosure controls and procedures are effective to perform
the functions for which they were established; the Company’s independent
auditors and the Audit Committee of the Board of Directors of the Company have
been advised of: (i) all significant deficiencies, if any, in the design or
operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data; and (ii) all
fraud, if any, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls; all material
weaknesses, if any, in internal controls have been identified to the Company’s
independent auditors; since the date of the most recent evaluation of such
disclosure controls and procedures and internal controls, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the
principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all certifications
required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”)
and
any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct; the
Company, the Subsidiaries and the Company’s directors and officers are each in
compliance in
all
material respects
with all
applicable effective provisions of the Sarbanes-Oxley Act and the rules and
regulations of the Commission and the NYSE
promulgated thereunder;
(ll)
the
Company has provided you true, correct and complete copies of all documentation
pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company or any Subsidiary to any director or
executive officer of the Company, or to any family member or affiliate of any
director or executive officer of the Company; and on or after July 30, 2002,
the
Company has not, directly or indirectly, including through any Subsidiary:
(i)
extended credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive officer
of
the Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (ii) made any material modification,
including any renewal thereof, to any term of any personal loan to any director
or executive officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on July 30,
2002;
(mm) all
statistical or market-related data included in the Registration Statement,
the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the Company
believes to be reliable and accurate in all material respects, and the Company
has obtained the written consent to the use of such data from such sources
to
the extent required;
(nn) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any
employee or agent of the Company or any Subsidiary has made any
15
payment
of funds of the Company or any Subsidiary or received or retained any funds
in
violation of any law, rule or regulation, which payment, receipt or retention
of
funds is of a character required to be disclosed in the Registration Statement,
any Preliminary Prospectus or the Prospectus;
(oo) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration
Statement;
(pp) except
as
set forth in the Registration Statement under the heading “Certain federal
income tax considerations,” from and including the Company’s taxable year ended
1992, the Company has continuously met, currently meets, and as of the time
of
purchase or additional time of purchase, as the case may be, will meet, the
requirements for, and its proposed methods of operations as described in the
Registration Statement or Prospectus will permit the Company to continue to
meet
the requirements for, qualification and taxation as a real estate investment
trust (“REIT”)
under
the Internal Revenue Code of 1986 (the “Code”);
and
all statements in the Prospectus or Registration Statement regarding the
Company’s qualification as a REIT are true, complete and correct in all material
respects;
(qq) neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected
to
cause or result in, under the Exchange Act or otherwise, the stabilization
or
manipulation of the price of any security of the Company to facilitate the
sale
or resale of the Shares; and
(rr) to
the
Company’s knowledge, there are no affiliations or associations between (i) any
member of the NASD and (ii) the Company or any of the Company’s officers,
directors or 5% or greater securityholders, except as set forth in the
Registration Statement (excluding the exhibits thereto), the Preliminary
Prospectuses and the Prospectus.
Each
certificate signed by an officer of the Company and delivered to the
Underwriters or counsel for the Underwriters pursuant to this Agreement at
the
time of purchase or the additional time of purchase shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered by such certificate. The Company acknowledges that the Underwriters
and,
for purposes of the opinions to be delivered to the Underwriters pursuant to
Section 6 hereof, counsel to the Company and counsel to the Underwriters will
rely upon the accuracy and truth of the foregoing representations, and the
Company hereby consents to such reliance.
4. Certain
Covenants.
The
Company hereby agrees:
(a) to
furnish such information as may be reasonably required and otherwise
16
to
cooperate in qualifying the Shares for offering and sale under the securities
or
blue sky laws of such states or other jurisdictions as you may designate and
to
maintain such qualifications in effect so long as you may reasonably request
for
the distribution of the Shares; provided,
however,
that
the Company shall not be required to qualify as a foreign entity or to consent
to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and
to
promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding for
such
purpose;
(b) to
make
available to the Underwriters in New York City, as soon as practicable after
this Agreement becomes effective, and thereafter from time to time to furnish
to
the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration Statement)
as
the Underwriters may request for the purposes contemplated by the Act; in case
any Underwriter is required to deliver (whether physically or through compliance
with Rule 172 under the Act or any similar rule), in connection with the sale
of
the Shares, a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act;
(c) if,
at
the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or
a
Registration Statement under Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Shares may be sold, the Company
will
use its best efforts to cause such post-effective amendment or such Registration
Statement to be filed and become effective, and will pay any applicable fees
in
accordance with the Act, as soon as possible; and the Company will advise you
promptly and, if requested by you, will confirm such advice in writing, (i)
when
such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus
is
filed with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner in accordance with such
Rules);
(d) on
a
confidential basis, to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus or for additional information with respect
thereto, or of notice of institution of proceedings for, or the entry of a
stop
order, suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal
of such order as soon as possible; on a confidential basis, to advise you
promptly of any proposal to amend or supplement the Registration Statement,
any
Preliminary Prospectus or the Prospectus, and to provide you and Underwriters’
counsel copies of any such documents for review and comment a reasonable amount
of time prior
17
to
any
proposed filing and to file no such amendment or supplement to which you shall
object in writing;
(e) subject
to Section 4(d)
hereof,
to file promptly all reports and documents and any preliminary or definitive
proxy or information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act for so long as a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares; and to provide you, on a confidential basis for your review and comment,
with a copy of such reports and statements and other documents to be filed
by
the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act during
such
period a reasonable amount of time prior to any proposed filing, and to file
no
such report, statement or document to which you shall have objected in writing;
and to promptly notify you of such filing;
(f) if
necessary or appropriate, to file a registration statement pursuant to Rule
462(b) under the Act and pay the applicable fees in accordance with the
Act;
(g) to
advise
the Underwriters promptly of the happening of any event within the period during
which a prospectus is required by the Act to be delivered (whether physically
or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, which event could require the making of
any
change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to
amend
or supplement the Prospectus to cause the Prospectus to comply with the
requirements of the Act, and, in each case, during such time, subject to Section
4(d)
hereof,
to prepare and furnish, at the Company’s expense, to the Underwriters promptly
such amendments or supplements to such Prospectus as may be necessary to reflect
any such change or to effect such compliance;
(h) to
make
generally available to its security holders, and to deliver to you, an earnings
statement of the Company (which will satisfy the provisions of Section 11(a)
of
the Act) covering a period of twelve months beginning after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Act) as
soon
as is reasonably practicable after the termination of such twelve-month period
but in any case not later than March 1, 2009;
(i) to
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet and statements
of
operations, stockholders’ equity and cash flow of the Company and the
Subsidiaries for such fiscal year, accompanied by a copy of the certificate
or
report thereon of nationally recognized independent certified public accountants
duly registered with the Public Company Oversight Accounting
Board);
18
(j) to
furnish to you one copy for each Managing Underwriter and one copy for
underwriters’ counsel copies of the Registration Statement, as initially filed
with the Commission, and of all amendments thereto (including all exhibits
thereto) and sufficient copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters;
(k) to
furnish to you promptly and, upon request, to each of the other Underwriters
for
a period of three years from the date of this Agreement (i) copies of any
reports, proxy statements, or other communications which the Company shall
send
to its stockholders or shall from time to time publish or publicly disseminate,
(ii) copies of all annual, quarterly, transition and current reports filed
with
the Commission on Forms 10-K, 10-Q or 8-K, or such other similar forms as may
be
designated by the Commission, (iii) copies of documents or reports filed with
any national securities exchange on which any class of securities of the Company
is listed and (iv) such other information as you may reasonably request
regarding the Company or the Subsidiaries; provided, however, it is understood
and agreed that the Company shall have no obligation to furnish any of the
items
under this section (k) to the extent such items are available via the EDGAR
database;
(l) to
furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business
days prior thereto, a copy of the latest available unaudited interim and monthly
consolidated financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company’s independent registered public accountants,
as stated in their letter to be furnished pursuant to Section 6(b)
hereof;
(m) to
apply
the net proceeds from the sale of the Shares in the manner set forth under
the
caption “Use of proceeds” in the Prospectus
(n) beginning
on the date hereof and ending on, and including, the date that is 90 days after
the date of the Prospectus (the “Lock-Up
Period”),
without the prior written consent of UBS, not to (i) issue, sell, offer to
sell,
contract or agree to sell, hypothecate, pledge, grant any option to purchase
or
otherwise dispose of or agree to dispose of, directly or indirectly, or
establish or increase a put equivalent position or liquidate or decrease a
call
equivalent position within the meaning of Section 16 of the Exchange Act and
the
rules and regulations of the Commission promulgated thereunder, with respect
to,
any Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable
or
exercisable for, or any warrants or other rights to purchase, the foregoing,
(ii) file or cause to become effective a registration statement under the Act
relating to the offer and sale of any Common Stock or any other securities
of
the Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing, (iii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or any securities convertible
into or
19
exchangeable
or exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iv) publicly announce an
intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the offer and sale of the
Shares as contemplated by this Agreement, (B) issuances of Common Stock upon
the
exercise of options or warrants disclosed as outstanding in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and
the
Prospectus, (C) the issuance of shares pursuant to the terms and conditions
of
the Company’s dividend reinvestment and stock purchase plan described in the
Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus, and (D) the issuance of employee stock options
not exercisable during the Lock-Up Period pursuant to stock option plans
described in the Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus and the Prospectus or the issuance of restricted stock,
stock awards or other equity incentives pursuant to the Company’s stock
incentive plans described in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus provided that the
recipients of such restricted stock, stock awards or other equity incentives
are
restricted from selling such restricted stock, stock awards or other equity
incentives during the Lock-Up Period; provided,
however,
that if
(a) during the period that begins on the date that is fifteen (15) calendar
days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section
4(n)
shall
continue to apply until the expiration of the date that is fifteen (15) calendar
days plus three (3) business days after the date on which the issuance of the
earnings release or the material news or material event occurs; provided,
further,
that
the immediately preceding proviso shall not apply if (i) the safe harbor
provided by Rule 139 under the Act is available in the manner contemplated
by
Rule 2711(f)(4) of the NASD;
and
(ii) within the 3 business days preceding the 15th calendar day before the
last
day of the Lock-Up Period, the Company delivers (in accordance with Section
11)
to UBS
a certificate, signed by the Chief Financial Officer or Chief Executive Officer
of the Company, certifying on behalf of the Company that the Company’s shares of
Common Stock are “actively traded securities,” within the meaning of Rule
2711(f)(4) of the NASD;
(o) prior
to
the time of purchase or any additional time of purchase, as the case may be,
to
issue no press release or other communication directly or indirectly and hold
no
press conferences with respect to the Company or any Subsidiary, the financial
condition, results of operations, business, properties, assets, or liabilities
of the Company or any Subsidiary, or the offering of the Shares, without your
prior consent, which shall not be unreasonably withheld;
(p) to
use
its best efforts to continue to qualify as a REIT under Sections 856 through
860
of the Code;
20
(q) to
use
its best efforts to cause the Common Stock to be listed on the NYSE and to
maintain such listing;
(r) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock;
(s) to
pay
all costs, expenses, fees and taxes in connection with (i) the preparation
and
filing of the Registration Statement, each Preliminary Prospectus, the
Prospectus, each Permitted Free Writing Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each thereof
to the Underwriters and to dealers (including costs of mailing and shipment),
(ii) the registration, issue, sale and delivery of the Shares including any
stock or transfer taxes and stamp or similar duties payable upon the sale,
issuance or delivery of the Shares to the Underwriters, (iii) the producing,
word processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any closing
documents (including compilations thereof) and the reproduction and/or printing
and furnishing of copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state or foreign laws
and the determination of their eligibility for investment under state or foreign
law (including the legal fees and filing fees and other disbursements of counsel
for the Underwriters) and the printing and furnishing of copies of any blue
sky
surveys or legal investment surveys to the Underwriters and to dealers, (v)
any
listing of the Shares on any securities exchange or qualification of the Shares
for quotation on the NYSE and any registration thereof under the Exchange Act,
(vi) any filing for review of the public offering of the Shares by the NASD,
including the legal fees and filing fees and other disbursements of counsel
to
the Underwriters relating to NASD matters, (vii) the fees and disbursements
of
any transfer agent or registrar for the Shares, (viii) the costs and expenses
of
the Company relating to presentations or meetings undertaken in connection
with
the marketing of the offering and sale of the Shares to prospective investors
and the Underwriters’ sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers
of
the Company and any such consultants, and the cost of any aircraft chartered
in
connection with the road show, and
(ix)
the
performance of the Company’s other obligations hereunder;
(t) to
comply
with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act)
and with Rule 433(g) under the Act;
(u) not,
at
any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act), or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than the
Prospectus; and
(v) not
to,
and to cause the Subsidiaries not to, take, directly or indirectly, any action
designed, or which will constitute, or has constituted, or might reasonably
be
21
expected
to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
5. Reimbursement
of Underwriters’
Expenses.
If the
Shares are not delivered for any reason other than the termination of this
Agreement pursuant to the fifth paragraph of Section 8
hereof
or the default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 4(o)
hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. Conditions
of Underwriters’
Obligations.
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the representations and warranties on the part of the Company on the date
hereof, at the time of purchase and, if applicable, at the additional time
of
purchase, the performance by the Company of its obligations hereunder and to
the
following additional conditions precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion or opinions of Powell Goldstein LLP,
counsel for the Company, addressed to the Underwriters, and dated the time
of
purchase or the additional time of purchase, as the case may be, with executed
copies for each of the other Underwriters, and in the form agreed to by Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, prior to the
execution of this Agreement.
(b) You
shall
have received from Ernst & Young LLP letters dated, respectively, the date
of this Agreement, the date of the Prospectus, the time of purchase and, if
applicable, the additional time of purchase, and addressed to the Underwriters
(with executed copies for each of the Underwriters) in the forms satisfactory
to
UBS, which letters shall cover, without limitation, the various financial
disclosures contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any.
(c) You
shall
have received at the time of purchase and, if applicable, at the additional
time
of purchase, the favorable opinion (which may provide for reliance, as to
Maryland law, on the opinion delivered under section 6(a) hereof) of Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, dated the
time of purchase or the additional time of purchase, as the case may be, in
form
and substance reasonably satisfactory to UBS.
(d) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in
writing.
(e) The
Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall
have been filed and shall have become effective under the Act. If Rule 430A
under the Act is used, the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b)
22
under
the
Act at or before 5:30 P.M., New York City time, on the second full business
day
after the date of this Agreement (or such earlier time as may be required under
the Act).
(f) Prior
to
and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement
and all amendments thereto shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; (iii) none of the Preliminary
Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; (iv) no Disclosure
Package, and no amendment or supplement thereto, shall include an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not
misleading.
(g) Between
the time of execution of this Agreement and the time of purchase or the
additional time of purchase, as the case may be, (A) no material adverse change
or any development involving a prospective material adverse change in the
business, properties, management, financial condition or results of operations
of the Company and the Subsidiaries taken as a whole shall occur or become
known
and (B) no transaction which is material and adverse to the Company has been
entered into by the Company or any of the Subsidiaries.
(h) The
Company will, at the time of purchase and, if applicable, at the additional
time
of purchase, deliver to you a certificate of its Chief Executive Officer and
its
Chief Financial Officer, dated the time of purchase or the additional time
of
purchase, as the case may be, in the form attached as Exhibit
B
hereto.
(i) The
Company will, at the time of purchase and, if applicable, at the additional
time
of purchase, deliver to you a certificate of its Chief Financial Officer, dated
the time of purchase or the additional time of purchase, as the case may be,
in
the form attached as Exhibit
C
hereto.
(j) You
shall
have received each of the signed Lock-Up Agreements referred to in Section
3(t)
hereof,
and each such Lock-Up Agreement shall be in full force and effect at the time
of
purchase and the additional time of purchase, as the case may be.
(k) The
Company shall have furnished to you such other documents and certificates as
to
the accuracy and completeness of any statement in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any Permitted Free Writing
23
Prospectus
as of the time of purchase and, if applicable, the additional time of purchase,
as you may reasonably request.
(l) The
Shares shall have been approved for listing on the NYSE, subject only to notice
of issuance at or prior to the time of purchase or the additional time of
purchase, as the case may be.
(m) The
NASD
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
7. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
The
obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of UBS, if (1) since the time of
execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, there has been any change or any development involving a prospective change
in the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole, the effect
of
which change or development is, in the sole judgment of UBS, so material and
adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since
the
time of execution of this Agreement, there shall have occurred: (A) a suspension
or material limitation in trading in securities generally on the NYSE, the
American Stock Exchange or NASDAQ; (B) a suspension or material limitation
in
trading in the Company’s securities on the NYSE; (C) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States
or a
declaration by the United States of a national emergency or war; or (E) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (D) or (E), in the sole judgment of UBS, makes it
impractical or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, or (3) since the time of execution of this
Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of: (A) any intended or potential
downgrading or (B) any watch, review or possible change that does not indicate
an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any “nationally recognized
statistical rating organization,” as that term is defined in Rule 436(g)(2)
under the Act.
If
UBS
elects to terminate this Agreement as provided in this Section 7,
the
Company and each other Underwriter shall be notified promptly in
writing.
24
If
the
sale to the Underwriters of the Shares, as contemplated by this Agreement,
is
not carried out by the Underwriters for any reason permitted under this
Agreement, or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall
not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(o),
5
and
9
hereof),
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 9
hereof)
or to one another hereunder.
8. Increase
in Underwriters’
Commitments.
Subject
to Sections 6
and
7
hereof,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a failure of
a
condition set forth in Section 6
hereof
or a reason sufficient to justify the termination of this Agreement under the
provisions of Section 7
hereof)
and if the number of Firm Shares which all Underwriters so defaulting shall
have
agreed but failed to take up and pay for does not exceed 10% of the total number
of Firm Shares, the non-defaulting Underwriters (including the Underwriters,
if
any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Firm Shares they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Shares agreed to be purchased
by all such defaulting Underwriters, as hereinafter provided. Such Shares shall
be taken up and paid for by such non-defaulting Underwriters in such amount
or
amounts as you may designate with the consent of each Underwriter so designated
or, in the event no such designation is made, such Shares shall be taken up
and
paid for by all non-defaulting Underwriters pro rata in proportion to the
aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule
A.
Without
relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm
Shares hereunder unless all of the Firm Shares are purchased by the Underwriters
(or by substituted Underwriters selected by you with the approval of the Company
or selected by the Company with your approval).
If
a new
Underwriter or Underwriters are substituted by the Underwriters or by the
Company for a defaulting Underwriter or Underwriters in accordance with the
foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five business days in order that
any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The
term
“Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 8
with
like effect as if such substituted Underwriter had originally been named in
Schedule
A
hereto.
If
the
aggregate number of Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the total number of Firm Shares which all
Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Firm Shares which the
defaulting Underwriter or Underwriters agreed to
25
purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company to any Underwriter and without
any liability on the part of any non-defaulting Underwriter to the Company.
Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable cost
of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company) or arises
out
of or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or
claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, the Registration Statement
or
arises out of or is based upon any omission or alleged omission to state a
material fact in the Registration Statement in connection with such information,
which material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was necessary
to make such information not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact included in any Prospectus (the term
Prospectus for the purpose of this Section 9
being
deemed to include any Preliminary Prospectus, the Prospectus and any amendments
or supplements to the foregoing), in any Permitted Free Writing Prospectus,
in
any “issuer information” (as defined in Rule 433 under the Act) of the Company,
which “issuer information” is required to be, or is, filed with the Commission,
or in any Prospectus together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any, or arises out of or is based upon
any omission or alleged omission to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading, except, with respect to such Prospectus or Permitted
Free Writing Prospectus, insofar as any such loss, damage, expense, liability
or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in, such Prospectus
or
Permitted Free Writing Prospectus or arises out of or is based upon any omission
or alleged omission to state a material fact in such Prospectus or Permitted
Free Writing Prospectus in connection with such information, which material
fact
was not
26
contained
in such information and which material fact was necessary in order to make
the
statements in such information, in the light of the circumstances under which
they were made, not misleading, (iii)
any
untrue statement or alleged untrue statement made by the Company in Section
3
hereof or the failure by the Company to perform when and as required any
agreement or covenant contained herein, or (iv) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual materials
provided by the Company or based upon written information furnished by or on
behalf of the Company, including, without limitation, slides, videos, films
or
tape recordings used in connection with the marketing of the
Shares.
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors and officers, and any person who controls the Company within
the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person
may
incur under the Act, the Exchange Act, the common law or otherwise, insofar
as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company),
or
arises out of or is based upon any omission or alleged omission to state a
material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information and
which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in,
a
Prospectus or a Permitted Free Writing Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in such
Prospectus or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and
which
material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not
misleading.
(c) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against a person (an “indemnified
party”)
in
respect of which indemnity may be sought against the Company or an Underwriter
(as applicable, the “indemnifying
party”)
pursuant to subsection (a)
or
(b),
respectively, of this Section 9,
such
indemnified party shall promptly notify such indemnifying party in writing
of
the institution of such Proceeding and such indemnifying party shall assume
the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided,
however,
that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have
to
any indemnified
party
or otherwise, except with
27
respect
to any liability under this Agreement to the
extent such delay has resulted in loss of substantive rights or defenses. The
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be
at
the expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such Proceeding or the indemnifying party shall
not have, within a reasonable period of time in light of the circumstances,
employed counsel to defend such Proceeding or such indemnified party or parties
shall have reasonably concluded based on advice of counsel that there may be
defenses available to it or them which are different from, additional to or
in
conflict with those available to such indemnifying party (in which case such
indemnifying party shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by such indemnifying party and
paid
as incurred (it being understood, however, that such indemnifying party shall
not be liable for the expenses of more than one separate counsel (in addition
to
any local counsel) in any one Proceeding or series of related Proceedings in
the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any settlement
of
any Proceeding effected without its written consent but, if settled with its
written consent, such indemnifying party agrees to indemnify and hold harmless
the indemnified party or parties from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this Section 9(c),
then
the indemnifying party agrees that it shall be liable for any settlement of
any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include
an
admission of fault or culpability or a failure to act by or on behalf of such
indemnified party.
(d) If
the
indemnification provided for in this Section 9
is
unavailable to an indemnified party under subsections (a)
and
(b)
of this
Section 9
or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above
28
is
not
permitted by applicable law, in such proportion as is appropriate to reflect
not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the
one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received
by
the Underwriters, bear to the aggregate public offering price of the Shares.
The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission
or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any
Proceeding.
(e) The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 9
were
determined by pro rata allocation (even if the Underwriters were treated as
one
entity for such purpose) or by any other method of allocation that does not
take
account of the equitable considerations referred to in subsection (d)
above.
Notwithstanding the provisions of this Section 9,
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount
of
any damage which such Underwriter has otherwise been required to pay by reason
of such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 9
are
several in proportion to their respective underwriting commitments and not
joint.
(f) The
indemnity and contribution agreements contained in this Section 9
and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors or officers
or
any person (including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, or by or on behalf of the Company, its directors or
officers or any person who controls the Company within the meaning of Section
15
of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The Company and
each Underwriter agree promptly to notify each other of the commencement of
any
Proceeding against it and, in the case of the Company, against any
29
of
the
Company’s officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus.
10. Information
Furnished by the Underwriters.
The
statements set forth under the caption “Underwriting—Commissions and Discounts”
and “Underwriting—Price Stabilization, Short Positions” in the Prospectus, only
insofar as such statements relate to the amount of selling concession and
reallowance or to over-allotment and stabilization activities that may be
undertaken by the Underwriters, constitute the only information furnished by
or
on behalf of the Underwriters, as such information is referred to in Sections
3
and
9
hereof.
11. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities
LLC,
299 Park Avenue, New York, NY 10171-0026, Attention: Syndicate Department and,
if to the Company, shall be sufficient in all respects if delivered or sent
to
the Company at the offices of the Company at 9690 Deereco Road, Suite 100,
Timonium, Maryland 21093 Attention: C. Taylor Pickett, Chief Executive
Officer.
12. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of
this
Agreement.
13. Submission
to Jurisdiction.
Except
as set forth below, no Claim may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern
District of New York, which courts shall have jurisdiction over the adjudication
of such matters, and the Company consent to the jurisdiction of such courts
and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out
of
or in any way relating to this Agreement is brought by any third party against
any Underwriter or any indemnified party. Each Underwriter and the Company
(on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
in
any way arising out of or relating to this Agreement. The Company agrees that
a
final judgment in any such action, proceeding or counterclaim brought in any
such court following the exhaustion of all available appeals shall be conclusive
and binding upon the Company and may be enforced in any other courts to the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
14. Parties
at Interest.
The
Agreement herein set forth has been and is made solely for the benefit of the
Underwriters and the Company and to the extent provided in Section 9
hereof
the controlling persons, partners, directors and officers referred to in such
Section, and their respective successors, assigns, heirs, personal
representatives and executors and
30
administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any
right
under or by virtue of this Agreement.
15. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
16. Successors
and Assigns.
This
Agreement shall be binding upon the Underwriters and the Company and their
successors and assigns and any successor or assign of any substantial portion
of
the Company’s and any of the Underwriters’ respective businesses and/or
assets.
17. No
Fiduciary Relationship.
The
Company hereby acknowledges that the Underwriters are acting solely as
underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm’s length basis, and in no event do the parties intend that the
Underwriters act or be responsible as a fiduciary to the Company, its
management, stockholders or creditors or any other person in connection with
any
activity that the Underwriters may undertake or have undertaken in furtherance
of the purchase and sale of the Company’s securities, either before or after the
date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriters agree that they are each responsible for making
their own independent judgments with respect to any such transactions and that
any opinions or views expressed by the Underwriters to the Company regarding
such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Company’s securities, do not constitute
advice or recommendations to the Company. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the Underwriters with respect to any breach or alleged breach
of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions.
18. Miscellaneous.
UBS, an
indirect, wholly owned subsidiary of UBS AG, is not a bank and is separate
from
any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect
to
sales and purchases of securities. Securities sold, offered or recommended
by
UBS are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise
an
obligation or responsibility of a branch or agency.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
31
If
the
foregoing correctly sets forth the understanding between the Company and the
several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding
agreement between the Company and the Underwriters, severally.
Very
truly yours,
Omega
Healthcare Investors, Inc.
By:
___________________________________
Name:
C.
Taylor
Pickett
Title:
Chief
Executive Officer
Accepted
and agreed to as of the date
first
above written, on behalf of
themselves
and the other several
Underwriters
named in Schedule A
UBS
Securities LLC
[
]
[
]
[
]
By:
UBS
Securities LLC
By:
_______________________________
Name:
Title:
By:
_______________________________
Name:
Title:
SCHEDULE
A
|
Underwriter
|
Number
of Firm Shares
|
|
UBS
SECURITIES LLC
|
[____]
|
|
[____]
|
[____]
|
|
[____]
|
[____]
|
|
[____]
|
[____]
|
|
Total
|
[____]
|
SCHEDULE
B
[___]
EXHIBIT
A
Lock-Up
Agreement
March
[ ], 2007
UBS
Securities LLC
[
]
[
]
[
]
c/o
UBS
Securities LLC
299
Park
Avenue
New
York,
New York 10171-0026
Ladies
and Gentlemen:
This
Lock-Up Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the “Underwriting
Agreement”)
to be
entered into by and between Omega Healthcare Investors, Inc., a Maryland real
estate investment trust (the “Company”), and you, as Representatives of the
several Underwriters named therein, with respect to the public offering (the
“Offering”)
of
common stock, par value $0.10 per share, of the Company (the “Common
Stock”).
In
order
to induce you to enter into the Underwriting Agreement, the undersigned agrees
that, for a period (the “Lock-Up
Period”)
beginning on the date hereof and ending on, and including, the date that is
90
days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of UBS Securities LLC,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (the “Commission”)
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder (the “Exchange
Act”)
with
respect to, any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (ii) enter into any swap or other arrangement that transfers
to
another, in whole or in part, any of the economic consequences of ownership
of
Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable
or
exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iii) publicly announce an
intention to effect any transaction specified in clause (i) or (ii) (each,
a
“Disposition”).
The
foregoing sentence shall not apply to (a) the registration of the offer and
sale
of Common Stock as contemplated by the Underwriting Agreement and the sale
of
A-1
the
Common Stock to the Underwriters (as defined in the Underwriting Agreement)
in
the Offering, (b) bona fide gifts, provided the recipient thereof agrees in
writing with the Underwriters to be bound by the terms of this Lock-Up
Agreement, (c) dispositions to any trust for the direct or indirect benefit
of
the undersigned and/or the immediate family of the undersigned, provided that
such trust agrees in writing with the Underwriters to be bound by the terms
of
this Lock-Up Agreement, (d) exercises of stock options (“Options”)
granted pursuant to the Company’s existing stock incentive plans, as well as
Dispositions of Common Stock (whether issuable upon the exercise of Options
or
previously acquired) to the Company for the purpose of funding the exercise
of
Options or the associated tax withholding obligations, (e) dispositions of
Common Stock to the Company solely for the purpose of funding and satisfying
tax
withholding obligations that may arise in connection with the vesting of
previously awarded shares of restricted Common Stock, or (f) the establishment
of a plan pursuant to Rule 10b5-1 under the Act that does not provide for or
permit Dispositions during the Restricted Period. For purposes of this
paragraph, “immediate family” shall mean the undersigned and the spouse, any
lineal descendent, father, mother, brother or sister of the
undersigned.
In
addition, the undersigned hereby waives any rights the undersigned may have
to
require registration of Common Stock in connection with the filing of a
registration statement relating to the Offering. The undersigned further agrees
that, for the Lock-Up Period, the undersigned will not, without the prior
written consent of UBS Securities LLC, make any demand for, or exercise any
right with respect to, the registration of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock or any such securities.
Notwithstanding
the above, if (a) during the period that begins on the date that is fifteen
(15)
calendar days plus three (3) business days before the last day of the Lock-Up
Period and ends on the last day of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or (b) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the sixteen (16) day
period beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Agreement shall continue to apply until the expiration
of the date that is fifteen (15) calendar days plus three (3) business days
after the date on which the issuance of the earnings release or the material
news or material event occurs; provided,
however,
that
this paragraph shall not apply if (i) the safe harbor provided by Rule 139
under
the Securities Act of 1933, as amended, is available in the manner contemplated
by Rule 2711(f)(4) of the National Association of Securities Dealers, Inc.
(the
“NASD”);
and
(ii) within the 3 business days preceding the 15th calendar day before the
last
day of the Lock-Up Period, the Company delivers (in accordance with the notice
provisions of the Underwriting Agreement) to UBS Securities LLC a certificate,
signed by the Chief Financial Officer or Chief Executive Officer of the Company,
certifying on behalf of the Company that the Company’s shares of Common Stock
are “actively traded securities,” within the meaning of Rule 2711(f)(4) of the
NASD.
The
undersigned hereby confirms that the undersigned has not, directly or
indirectly, taken, and hereby covenants that the undersigned will not, directly
or indirectly, take, any action designed, or which has constituted or will
constitute or might reasonably be expected
A-2
to
cause
or result in the stabilization or manipulation of the price of any security
of
the Company to facilitate the sale or resale of shares of Common
Stock.
*
*
*
A-3
If
(i)
the Company notifies you in writing that it does not intend to proceed with
the
Offering, (ii) the registration statement filed with the Commission with respect
to the Offering is withdrawn or (iii) for any reason the Underwriting Agreement
shall be terminated prior to the “time of purchase” (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
Yours
very truly,
____________________________________
Name:
A-4
EXHIBIT
B
OFFICERS’
CERTIFICATE
Each
of
the undersigned, C. Taylor Pickett, Chief Executive Officer of Omega Healthcare
Investors, Inc., a Maryland corporation (the “Company”),
and
Robert O. Stephenson, Chief Financial Officer of the Company, on behalf of
the
Company, does hereby certify pursuant to Section 6(h) of that certain
Underwriting Agreement dated March [ ], 2007 (the
“Underwriting
Agreement”)
between the Company and UBS Securities LLC,
[
],
[
] and
[
], that as of April [ ], 2007:
| 1. |
He
has reviewed the Registration Statement, each Preliminary Prospectus,
the
Prospectus and each Permitted Free Writing Prospectus.
|
| 2. |
The
representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
| 3. |
The
Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date
hereof.
|
| 4. |
The
conditions set forth in paragraphs (h) and (i) of Section 6 of the
Underwriting Agreement have been
met.
|
| 5. |
The
financial statements and other financial information included in
the
Registration Statement, each Preliminary Prospectus, the Prospectus
and
each Permitted Free Writing Prospectus fairly present in all material
respects the financial condition, results of operations and cash
flows of
the Company and the Subsidiaries as of, and for, the periods therein
presented.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
IN
WITNESS WHEREOF, the undersigned have hereunto set their hands on this April
[ ], 2007.
_______________________________________________
Name:
C.
Taylor
Pickett
Title:
Chief
Executive Officer
_______________________________________________
Name:
Robert
O.
Stephenson
Title:
Chief
Financial Officer
B-1
EXHIBIT
C
CHIEF
FINANCIAL OFFICERS’ CERTIFICATE
The
undersigned, Robert O. Stephenson, Chief Financial Officer of Omega Healthcare
Investors, Inc., a Maryland corporation (the “Company”),
on
behalf of the Company, does hereby certify pursuant to Section 6(i) of that
certain Underwriting Agreement dated March [ ], 2007 (the
“Underwriting
Agreement”)
between the Company and UBS Securities LLC,
[
],
[
] and
[
], that as of April [ ], 2007:
| 1. |
I
am familiar with the terms of (i) the Credit Agreement, dated as
of March
31, 2006, by and among the Company, certain of the Company’s Subsidiaries
and Bank of America, N.A. and the other lenders named therein, as
amended
as of the date hereof; (ii) the Company’s 7% Senior Notes due 2014; (iii)
the Company’s 7% Senior Notes due 2016; (iv) the Company’s Series D
Preferred Stock; and (v) and other agreements relating to the indebtedness
of the Company and/or its Subsidiaries outstanding on the date hereof
(each as may be amended as of the date hereof, collectively, and
together
with the previously mentioned agreement, the “Agreements”).
For the purpose of this certificate, I have reviewed in particular
the
covenants contained in the Agreements, including those which require
the
maintenance of certain financial ratios or similar requirements by
the
Company and/or which prohibit the incurring of debt by the Company
under
various circumstances.
|
| 2. |
On
the date hereof, there exists no event of default or event which
with
notice or lapse of time or both would constitute an event of default
under
the Agreements.
|
| 3. |
The
issuance by the Company of any Additional Shares pursuant to the
Underwriting Agreement will not result in an event of default or
event
which with notice or lapse of time or both would constitute an event
of
default under the Agreements.
|
| 4. |
Without
limiting the generality of the foregoing, for the purposes of this
certificate, I have made or caused to be made the computations as
of
December 31, 2006, of certain financial ratios under the Agreements,
which
were utilized in order to make the statements contained
herein.
|
| 5. |
I
am sufficiently familiar with the financial affairs of the Company
by
reason of my present position with the Company to make the statements
contained in this certificate, which are based upon the financial
statements of the Company and its Subsidiaries as of and for the
year
ended December 31, 2006 and other written statements, summaries,
tabulations and computations which I believe to be accurate and reliable,
made and furnished to me by employees of the Company in the regular
course
of their duty. I am also sufficiently familiar with the present financial
condition and operating results of the Company and its Subsidiaries
that
any material changes in the facts underlying the data relied upon
by me in
making this certificate occurring since the respective dates of such
data
would have come to my attention prior to the date hereof in the regular
course of business.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
C-1
IN
WITNESS WHEREOF, the undersigned has hereunto set his hands on this April
[ ], 2007.
_______________________________________
Name: Robert O. Stephenson
Name: Robert O. Stephenson
Title:
Chief
Financial Officer
C-2