8-K: Current report filing
Published on June 15, 2009
EXHIBIT 1.3
OMEGA
HEALTHCARE INVESTORS, INC.
$100,000,000
Shares of
Common Stock
(par
value $0.10 per share)
EQUITY
DISTRIBUTION AGREEMENT
June
12, 2009
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
One
Bryant Park
New York,
New York 10036
Ladies
and Gentlemen:
Omega
Healthcare Investors, Inc., a Maryland corporation (the "Company"), confirms its
agreement (this "Agreement") with Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Manager"), as
follows:
SECTION
1. Description of
Securities. The Company proposes to issue and sell through or
to the Manager (or any Alternative Manager (as defined below)), as sales agent
and/or principal, shares of the Company's common stock, par value $0.10 per
share (the "Common
Stock"), having an aggregate gross sales price of up to $100,000,000 (the
"Maximum Amount") on
the terms set forth in Section 3 of this Agreement. The shares of
Common Stock to be sold through or to the Manager pursuant hereto or pursuant to
a Terms Agreement (as defined below) or through or to an Alternative Manager
pursuant to an Alternative Distribution Agreement or Alternative Terms Agreement
(each term as defined below) are referred to herein as the
"Shares."
The
Company has also entered into separate equity distribution agreements (each an
"Alternative Equity
Distribution Agreement" and, collectively the "Alternative Equity Distribution
Agreements"), dated of even date herewith, with each of Deutsche Bank
Securities Inc., as sales agent and/or principal, and UBS Securities LLC,
as sales agent and/or principal (each an "Alternative Manager" and,
collectively the "Alternative
Managers"). The Company agrees that whenever it determines to
sell the Shares directly to the Manager or an Alternative Manager as principal,
it will enter into a separate agreement (each, a "Terms Agreement" or "Alternative Terms Agreement,"
respectively) in form and substance satisfactory to the Manager or the
applicable Alternative Manager, as the case may be, relating to such sale in
accordance with Section 3 of this Agreement. This Agreement and the
Alternative Equity Distribution Agreements are sometimes hereinafter referred to
as the "Distribution Agreements."
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The
aggregate gross sales price of the Shares that may be sold pursuant to this
Agreement, the Alternative Distribution Agreements, any Terms Agreement and any
Alternative Terms Agreement shall not exceed the Maximum Amount.
SECTION
2. Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with the Manager that:
(a) An automatic shelf registration
statement on Form S-3 (File No. 333-150183) (the "registration
statement") as defined in
Rule 405 under the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively called the "Act"), in respect of the Shares, including
a form of prospectus, has been prepared and filed by the Company not
earlier than three years prior to the date hereof, in conformity with the
requirements of the Act, and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder (the "Rules and
Regulations"). The registration
statement contains certain information concerning the offering and sale of the
Common Stock, including the Shares, and contains additional information
concerning the Company and its business; the Commission has not issued
an order preventing or
suspending the use of the Basic Prospectus (as defined below), the Prospectus
Supplement (as defined below), the Prospectus (as defined below) or any
Permitted Free Writing Prospectus (as defined below), or the effectiveness of
the Registration Statement, and no proceedings
for that purpose or pursuant to Section 8A of the Act have been instituted or,
to the Company's knowledge threatened by the Commission. 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 Manager, as well as any new registration statement, post-effective
amendment or new automatic shelf registration
statement as may have been filed pursuant to Sections 4(g) or (h) of this
Agreement, including (1) all documents filed as a part thereof or incorporated
or deemed to be incorporated by reference therein, (2) any information contained or incorporated by
reference 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 430B
or Rule 430C under the Act, to be part of the registration statement at the time of such registration
statement's effectiveness for purposes of Section 11 of the Act, as such section
applies to the Manager and (3) any registration statement filed to register the
offer and sale of Shares pursuant to Rule 462(b) under the Act. Except where the
context otherwise requires, "Basic
Prospectus," as used
herein, means the prospectus filed as part of each Registration Statement,
together with any amendments or supplements thereto as of the date of this
Agreement. Except where the context otherwise requires,
"Prospectus
Supplement," as used
herein, means the final prospectus supplement, 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), in the form furnished by the Company to the
Manager in connection with the offering of the Shares. Except where
the context otherwise requires, "Prospectus," as used herein, means the Prospectus Supplement together with
the Basic Prospectus attached to or used with the Prospectus
Supplement. Notwithstanding the
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foregoing, if any revised basic
prospectus, prospectus supplement or prospectus shall be provided to the Manager
by the Company for use in connection with the
offering and sale of the Shares which differs from the Basic Prospectus,
Prospectus Supplement or Prospectus, as the case may be (whether or not such
revised basic prospectus, prospectus supplement or prospectus is
required to be filed by the Company pursuant
to Rule 424(b) of the Act), the terms "Basic Prospectus," "Prospectus
Supplement" and "Prospectus" shall refer to such revised basic prospectus,
prospectus supplement or prospectus, as the case may be, from and
after the time it is first provided to the
Manager for such use. "Permitted Free
Writing Prospectuses," as
used herein, means the documents, if any, listed on Schedule
A hereto and any other
"issuer free writing prospectus" (as defined in Rule 433 of the Act)
that the Company and the
Manager shall agree from time to time is a Permitted Free Writing
Prospectus. Any reference herein to the registration statement, the
Registration Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall
be deemed to refer to and include the documents, if any, incorporated by
reference, or deemed to be incorporated by reference, therein (the "Incorporated
Documents"), including,
unless the context otherwise requires, the documents, if any, filed as exhibits
to such Incorporated Documents. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or
any Permitted Free Writing
Prospectus shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange
Act") on or after the
initial effective date of
the Registration Statement, or the date of the Basic Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing Prospectus, if any, as
the case may be, and deemed to be incorporated therein by
reference.
(b) The Registration Statement complied when it
became effective, complies as of the date hereof and, as amended or
supplemented, at each deemed effective date with respect to the Manager pursuant
to Rule 430(B)(f)(2) of the Act, at each Settlement Date (as
defined in Section 3(a)(vi) hereof), and
at all times during which a prospectus is required by the Act to be delivered
(whether physically, deemed to be delivered pursuant to Rule 153 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, and the
Registration Statement did not and will not, at or during such times, contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the conditions to the
use of Form S-3 in connection with the offering and sale of the Shares as
contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of
the Shares as contemplated hereby comply with, the requirements of Rule 415
under the Act (including, without limitation, Rule 415(a)(5)); the Basic
Prospectus complied or will comply, at the time it was or will be filed with the Commission, complies as
of the date hereof (if filed with the Commission on or prior to the date hereof)
and, as of the time of each sale of Shares pursuant to this Agreement (each, a
"Time
of Sale"), at each
Settlement Date and at all
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times during which a prospectus is required
by the Act to be delivered (whether physically, deemed to be delivered pursuant
to Rule 153 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; at no time during the period that begins on the earlier
of the date of the Basic Prospectus and the date the Basic Prospectus was filed
with the Commission and ends on each Settlement Date did or will the Basic 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; the Prospectus will comply,
as of the date that it is filed with the Commission, the date of the Prospectus
Supplement, each Time of Sale, each Settlement Date, and at all times during
which a prospectus is required by the Act to be delivered (whether physically, deemed to be
delivered pursuant to Rule 153 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 date of the Prospectus
Supplement and ends at the later of each Settlement Date and the end of the
period during which a prospectus is required by the Act to be delivered
(whether physically, deemed to be
delivered pursuant to Rule 153 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, either alone or
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; each Permitted Free Writing Prospectus will comply, as of its
date, as of each Time of Sale and Settlement Date and at all times during which
a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered
pursuant to Rule 153 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; at no time during the
period that begins on the date of each
Permitted Free Writing Prospectus and ends at the later of each Settlement Date
and the end of the period during which a prospectus is required by the Act to be
delivered (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance
with Rule 172 under the Act or any similar rule) in connection with any
sale of any Shares did or will such Permitted Free Writing Prospectus include
any information that conflicted or will conflict with any information
contained in the Registration Statement,
the Prospectus or any Incorporated Document or 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 warranty with respect to any statement contained in
the Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in conformity
with information concerning the Manager and furnished in writing by or on behalf
of the Manager expressly for use in the Registration Statement, the Basic
Prospectus, the Prospectus or such Permitted Free Writing Prospectus, as the case may be; each
Incorporated Document, at the time such document
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was filed with the Commission or at the
time such document became effective, as applicable, complied, in all material
respects, with the requirements of the Exchange Act and did 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 were
made, not misleading. For all purposes of this Agreement
(including, without limitation, the
provisions of this paragraph and of Section 6 of this Agreement), the
Company and the Manager agree that the only information furnished or to be
furnished by or on behalf of the Manager expressly for use in the
Registration Statement, the Basic Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
or any amendment or supplement to any of the foregoing is the statement that the
Manager will not engage in any transactions that stabilize the Common Stock appearing in the
fourth sentence of the first paragraph under the caption "Plan of distribution"
in the Prospectus Supplement dated June 12, 2009.
(c) (i) At the time of filing of the
Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), (iii) at the
time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c) under
the Act) made any offer relating to the Shares in reliance on the exemption of
Rule 163 under the Act and (iv) at the date hereof, the
Company is a "well-known seasoned issuer" as
defined in Rule 405 under the Act. The Company has not received
from the Commission any notice pursuant to Rule 401(g)(2) under the Act
objecting to the use of the automatic shelf registration
form.
(d) Prior to the execution of this Agreement, the Company has
not, directly or indirectly, offered or sold any Shares by means of any
"prospectus" or "free writing prospectus" (in each case within the meaning of
the Act) or used any "prospectus" or "free writing prospectus" (in each case within the meaning of the
Act) in connection with the offer or sale of the Shares, and from and after the
execution of this Agreement, the Company will not, directly or indirectly, offer
or sell any Shares by means of any "prospectus" or "free writing prospectus" (in each case within
the meaning of the Act) or use any "prospectus" or "free writing prospectus" (in
each case within the meaning of the Act) in connection with the offer or sale of
the Shares, other than the Prospectus, as amended or supplemented from time to time in
accordance with the provisions of this Agreement, and any Permitted Free Writing
Prospectuses; the Company has not, directly or indirectly, prepared, used or
referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules
164 and 433 under the Act; assuming that any 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 the Manager, of any Permitted Free Writing Prospectus will satisfy
the provisions of Rule 164 or Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the
conditions set forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied, and
5
the registration statement relating to
the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a
prospectus that, other than by reason of Rule 433 or Rule 431 under
the Act, satisfies the requirements of Section 10 of the Act; neither the
Company nor the Manager is 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 are "issuer free writing prospectuses" as defined in
Rule 433 of the Act.
(e) As of the date of this Agreement, the
Company has an authorized
and outstanding capitalization as set forth in the consolidated balance sheet as
of March 31, 2009, or as of the Company's then most recently completed quarter
or fiscal year, contained in the Company's quarterly report on Form 10-Q or the
Company's annual report on Form 10 K, as
applicable, at the indicated date, and there has been no material change in such
information since March 31, 2009, or the Company's then most recently completed
quarter or fiscal year, other than (i) the increase in the number of authorized shares of Common
Stock to 200,000,000 by the filing of the Company’s Articles of Amendment on May 28, 2009
with the Secretary of State of the State of Maryland, (ii) the issuance of
shares of Common Stock under the Company’s dividend reinvestment and stock purchase plan and
director and employee compensation plans; and (iii) except as set forth in the
Prospectus; all of the issued and outstanding shares of capital stock, including
the Common 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 applicable
securities laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right; the Shares are duly listed, and admitted and
authorized for trading, subject to official notice of issuance, on the New York
Stock Exchange (the "NYSE").
(f)
The Company has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the State
of Maryland, with full corporate power and authority to acquire, own, lease and
operate its properties, to lease the same to others, to conduct its business as
described in the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any, to execute and
deliver this Agreement and will have, at the time of execution thereof, full
corporate power and authority to enter into any Terms Agreement and to issue,
sell and deliver the Shares as contemplated herein and in any Alternative Equity Distribution Agreement;
and the Company is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdiction 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 operations or prospects of
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the Company and the Subsidiaries (as
defined below) taken as a whole, (ii) prevent consummation of the transactions contemplated hereby or by
any Alternative Equity Distribution Agreement, or (iii) result in the delisting
of shares of Common Stock from the NYSE (the occurrence of any such effect or
any such prevention or interference or any such result described in the foregoing clauses (i),
(ii) and (iii) being herein referred to as a "Material Adverse
Effect").
(g) The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, have
a Material Adverse Effect.
(h) The Company has no subsidiaries
(as defined under the Act)
other than those subsidiaries listed on Schedule
B hereto (collectively, the
"Subsidiaries"); the Company owns all of the issued
and outstanding capital stock or equity interests, as applicable, of each of the
Subsidiaries; except as set
forth in the Registration Statement, the Prospectus or a Permitted Free Writing
Prospectus, other than the capital stock or equity interests, as applicable, of
the Subsidiaries, or as would not be material to the Company and its
Subsidiaries on a consolidated basis, the Company does not
own, directly or indirectly, any shares of stock or any other equity interests
or long-term debt securities of any corporation, firm, partnership, joint
venture, association or other entity; complete and correct copies of the charters and the bylaws of the
Company and all amendments thereto have been delivered to the Manager; each
Subsidiary has been duly incorporated or formed and is validly existing as a
corporation or limited liability company, as applicable, in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power or limited
liability company power, as applicable, and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any; each Subsidiary is duly qualified
to do business as a foreign corporation or limited liability company, as
applicable, and is in good standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect; each Subsidiary is in compliance in all respects with
the laws, orders, rules, regulations and directives issued or administered by
such jurisdictions, except where the failure to be in compliance would not,
individually or in the aggregate, have a Material Adverse Effect; all of the outstanding shares of
capital stock or equity interests, as applicable, of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable,
have been issued in compliance with all applicable securities laws and were not issued in violation
of any preemptive right, resale right, right of first refusal or similar right
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 or
granted under the Company's existing senior credit facility or a replacement
thereto; and no options, warrants or other rights to purchase, agreements or
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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 subsidiaries" (as defined in Rule 1-02 of Regulation S-X under the
Act) other than those subsidiaries that are listed in Exhibit 21 to the Company's Annual Reports on
form 10-K;
(i)
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.
(j)
The capital stock of
the Company, including the Shares, conforms in all material respects to each
description thereof, if any, contained or incorporated by reference in the Registration Statement,
the Prospectus or any Permitted Free Writing Prospectus; and the certificates
for the Shares are in due and proper form and the holders of the Shares will not
be subject to personal liability by reason of being such holders.
(k) The Company has full corporate power and
authority to enter into this Agreement. Each of this Agreement and
the Alternative Equity Distribution Agreements has been duly authorized,
executed and delivered by the Company. Other than any
Alternative Distribution
Agreement, any Terms Agreement or any Alternative Terms Agreement, the Company
has not entered into any other sales agency or distribution agreements or
similar arrangements with any agent or other representative in respect of the
Shares and the equity shelf program established by
this Agreement. Each of this Agreement and the Alternative Equity
Distribution Agreements constitutes a valid and binding agreement of the Company
and is enforceable against the Company in accordance with its terms, except as the enforceability hereof
and thereof may be limited by applicable bankruptcy, insolvency, reorganization
and similar laws affecting creditors' rights generally and moratorium laws in
effect from time to time and by equitable principles restricting the availability of equitable
remedies.
(l)
Neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor has any event
occurred which, with notice, lapse of time or both, would result in any breach
or violation of, constitute
a default under or give the holder of any indebtedness (or a person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) (A) its respective
charter or bylaws, or (B) 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 its Subsidiaries is a party or by which it or any of them or any of their respective
properties may be bound or affected, or (C) any federal, state, local or foreign
law, regulation or rule, (D) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without limitation, the rules
and regulations of the NYSE), (E) any decree, judgment or order applicable to
(i) the Company or any of the
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Subsidiaries or (ii) any of their
respective properties,
except in the case of clauses (B), (C) and (E)(ii) above, any such breach, violation or
default that would not individually, or in the aggregate, have a Material
Adverse Effect.
(m) The execution, delivery and performance
of this Agreement and the Alternative Equity Distribution Agreement and the
issuance and sale of the
Shares and the consummation of the transactions contemplated hereby (A) will not
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) (i) the charter or bylaws of the Company or
any of the Subsidiaries, 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, including, without limitation, the rules and regulations of the
NYSE, or (iii) 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 clause (ii) above, any
such breach, violation or default 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").
(n) 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 (i) registration of the Shares under the
Act, which has been effected, and, the
listing of the Shares on the NYSE, which has been effected, (ii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Manager or (iii) under the Conduct Rules of the Financial
Industry Regulatory Authority, Inc. ("FINRA")
(o) Except as expressly set forth in the
Registration Statement (excluding the exhibits thereto) 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, agent or financial advisor to
the Company or in any similar capacity in
9
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.
(p) Each of the Company and the Subsidiaries
(and, to the Company's knowledge, each operator, lessee or sublessee of any
Property or portion
thereof) (i) has all necessary licenses, authorizations, consents and approvals,
(ii) has made all necessary filings required under any federal, state, local or
foreign law, regulation or rule and (iii) has obtained all necessary licenses,
authorizations, consents and approvals from
other persons, in order to acquire and own, lease or sublease, lease to others
and conduct its respective business as described in the 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.
(q) 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.
(r)
Except as set forth in
the Registration Statement, the Prospectus or a Permitted Free Writing
Prospectus, 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 their
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,
10
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. Except as set forth in the
Registration Statement, the Prospectus or a Permitted Free Writing Prospectus,
there are no actions, suits, claims, investigations or proceedings pending, or
to the Company's knowledge, threatened or contemplated, in each case by the
Commission or FINRA to which the Company or any of the Subsidiaries or any of
their respective directors or officers is or would be a
party.
(s) Ernst & Young LLP (the "Accountants"), whose report on the consolidated
financial statements of the
Company and the Subsidiaries is included or incorporated by reference in the
Registration Statement and the Prospectus, are independent registered public
accountants as required by the Act and by the rules of the Public Company
Accounting Oversight Board.
(t)
The financial statements
included or incorporated by reference in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus, together with the related
notes and schedules, present fairly the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations, cash flows and changes in stockholders' equity of the Company and
the Subsidiaries for the periods specified and have been prepared in
compliance with the applicable
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 or incorporated by reference in the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus
comply with the applicable requirements of the Act and 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 or incorporated by reference in
the Registration Statement, the Prospectus or any Permitted Free Writing
Prospectus are accurately and fairly presented and prepared in all material respects on a basis
consistent with the financial statements and books and records of the Company
and the Subsidiaries; there are no financial statements (historical or pro
forma) that are required to be included or incorporated by reference
in the Registration Statement or the
Prospectus that are not included or incorporated by reference as required;
neither the Company nor any of the Subsidiaries has any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations), not described in the
Registration Statement (excluding the exhibits thereto) and the Prospectus; and
all disclosures contained or incorporated by reference in the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus 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.
11
(u) Subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any, 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 or liability, 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 option 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.
(v) 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").
(w) The Company, and each of the
Subsidiaries, has insurable title, and, in the case of real property, in fee simple, to the
Properties, free and clear of all liens, claims, mortgages, deeds of trust,
restrictions, security interests or other encumbrances, or defects
("Property
Encumbrances"), except for
(x) Property Encumbrances as set forth in the Registration Statement, the
Prospectus or a Permitted Free Writing Prospectus, (y) the leasehold interests
of lessees in the Properties of the Company and the Subsidiaries held under
lease (the "Leases") and (z) 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 Prospectus and the Permitted Free
Writing Prospectuses, if any, are disclosed therein as
required;
(x)
Each of
the Leases pertaining to the Properties has been duly authorized by the Company
or a Subsidiary, as applicable, and is a valid, subsisting and enforceable
agreement of the Company or such Subsidiary, as applicable, and, to the 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.
(y) 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.
12
(z)
To the Company's
knowledge, except as disclosed in the Registration Statement, the Prospectus
or a 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.
(aa) To the Company's knowledge, except as
disclosed in the Registration Statement, Prospectus or a Permitted Free
Writing 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.
(bb)
Each of the Company and the
Subsidiaries owns, or has 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 Prospectus
or any Permitted Free Writing Prospectus as being owned or licensed by it or
which is necessary for the conduct of, or
material to, their respective businesses (collectively, the "Intellectual
Property"), except where
the failure to own, license or have such rights would not, individually or in
the aggregate, have a Material Adverse Effect.
(cc)
Except as set forth in the
Registration Statement, the Prospectus or a Permitted Free Writing Prospectus,
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, and 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;
(dd) Except as set forth in the Registration
Statement, the Prospectus or a Permitted Free Writing Prospectus, 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,
13
present or, to the Company's knowledge,
reasonably anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be expected to give rise to any material costs
or liabilities to the Company or any Subsidiary under, or to interfere with or
prevent compliance by the Company or any Subsidiary with, Environmental Laws,
except as would not, individually or in the aggregate, have a Material Adverse Effect; except as
would not, individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries, nor, to the Company's
knowledge, any seller, lessee, sublessee or operator of any Property
or portion thereof or any previous owner
thereof, (i) is the subject of any investigation, (ii) has received any notice
or claim, (iii) is a party to or affected by any pending or threatened action,
suit or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any Environmental
Law or any actual or alleged release or threatened release or cleanup at any
location of any Hazardous Materials (as defined below); and neither the Company nor any of the
Subsidiaries, nor, to the Company's knowledge, any seller, lessee, sublessee or
operator of any Property or portion thereof or any previous owner thereof, has
received from any governmental authority notice of any violation, concerning the Properties, of any
municipal, state or federal law, rule or regulation or of any Environmental Law,
except for such violations as have heretofore been cured and except for such
violations as would not, individually or in the aggregate, have a Material Adverse Effect (as used
herein, "Environmental
Law" means any federal,
state or local law, statute, ordinance, rule, regulation, order, decree,
judgment, injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened release of Hazardous Materials,
and "Hazardous
Materials" means any
material (including, without limitation, pollutants, contaminants, hazardous or
toxic substances or wastes) that is regulated by or may give rise to liability
under any Environmental
Law).
(ee) Except as set forth in the Registration
Statement, the Prospectus or a Permitted Free Writing Prospectus , 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
14
noncompliance with any Authorization that would
not, individually or in the aggregate, have a Material Adverse
Effect.
(ff) Neither the Company nor any of the
Subsidiaries, nor, to the 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.
(gg) All federal, state, local and foreign
income tax returns required to be filed by the Company or any of the Subsidiaries have been
timely filed, all such tax returns are correct and complete in all material
respects, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been timely paid, other
than those being contested in good faith and for which adequate reserves have
been provided; and to the Company's knowledge, there is no tax deficiency which has been asserted
against the Company or any Subsidiary, except any tax deficiency which would
not, individually or in the aggregate, have a Material Adverse
Effect.
(hh)
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 on the date hereof and will be fully in force at each
Time of Sale and Settlement Date; 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 or as set forth in the
Registration Statement, the Prospectus or a Permitted Free Writing Prospectus,
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.
(ii) Neither the Company nor any of the
Subsidiaries has sustained since the date of the last audited consolidated
financial statements of the Company included or incorporated by reference in
the Registration Statement
and the Prospectus any loss or interference with its respective business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court
15
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,
except as set forth in the Registration Statement, the Prospectus or a Permitted
Free Writing Prospectus.
(jj) Neither the Company nor any
Subsidiary has sent or
received any written communication regarding termination of, or intent not to
renew, any of the leases, contracts or agreements referred to or described in
the Prospectus or any Permitted Free Writing Prospectus, or referred to or
described in, or filed as an exhibit to, the
Registration Statement or any Incorporated Document, and no such termination or
non-renewal has been threatened by the Company or any Subsidiary or, to the
Company's knowledge after due inquiry, any other party to any such contract or agreement, except as
described in the Prospectus and for such termination, threat or non-renewal as
would not individually, or in the aggregate, have a Material Adverse
Effect.
(kk)
The Common Stock is an
"actively-traded security" excepted from the requirements of Rule 101 of
Regulation M under the Exchange Act by subsection (c)(1) of such
rule.
(ll) The Company and each of the
Subsidiaries, on a consolidated basis, maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken
with respect to any differences.
(mm) The Company has established and
maintains and evaluates "disclosure controls and procedures" (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act) and "internal
control over financial
reporting" (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange
Act); such disclosure controls and procedures are designed to ensure that
material information relating to the Company and the 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 registered public accountants 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 "significant deficiencies" and "material weaknesses" (as such terms are defined in Rule
102(a)(4) of Regulation S-X under the Act) of the Company, if any, in internal
controls have been identified to the Company's independent registered public
accountants and any material weaknesses have been
16
disclosed in the Registration Statement (excluding
the exhibits thereto) and the Prospectus; 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.
(nn) The Company has provided the Manager
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.
(oo)
Each "forward-looking statement"
(within the meaning of Section 27A of the Act or Section 21E of the
Exchange Act) contained or incorporated by reference in the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus has been
made with a reasonable basis and in good faith.
(pp)
All statistical or market-related
data included or incorporated by reference in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate in all material respects, and
the Company has obtained the written consent to the use of such data from such
sources to the extent required.
(qq)
Neither the Company nor any
of the Subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of the Subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder; and the
Company, the Subsidiaries and, to the knowledge of the Company, its affiliates
have
17
instituted and maintain policies and
procedures designed to ensure continued compliance
therewith.
(rr) The operations of the Company and the
Subsidiaries are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "Money Laundering
Laws"); and no action, suit
or proceeding by or before any court or governmental agency, authority or body
or any arbitrator or non-governmental authority involving the Company or any of
the Subsidiaries with respect to the Money Laundering Laws is pending or, to the
Company's knowledge, threatened.
(ss) Neither the Company nor any of the
Subsidiaries nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of the Subsidiaries is
currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering of the Shares contemplated hereby,
or lend, contribute or
otherwise make available such proceeds to any Subsidiary, joint venture partner
or other person or entity for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(tt) The Company is in compliance with the rules of the
NYSE, including, without limitation, the requirements for continued listing of
the Common Stock on the NYSE and the Company has not received any notice from
the NYSE regarding the delisting of the Common Stock from the NYSE.
(uu) 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.
(vv) 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.
18
(ww) The description of the Company's
organization and method of operation and its qualification and taxation as a
REIT set forth in the Registration Statement, the Prospectus, and the Permitted Free
Writing Prospectuses, if any, is accurate and presents fairly the matters
referred to therein; the Company's conflicts of interest, operating policies,
investment guidelines and operating restrictions described in the Registration Statement, the Prospectus and
the Permitted Free Writing Prospectus, if any, accurately reflect in all
material respects the current intentions of the Company with respect to the
operation of its business, and no material deviation from such guidelines or policies is currently
contemplated.
(xx) 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.
(yy) To the Company's knowledge, there
are no affiliations or
associations between (i) any member of the FINRA and (ii) the Company or any of
the Company's officers, directors or 5% or greater security holders or any
beneficial owner of the Company's unregistered equity securities that were
acquired at any time on or after the 180th
day immediately preceding the date the Registration Statement was initially
filed with the Commission, except as disclosed in the Registration Statement
(excluding the exhibits thereto) and the Prospectus.
(zz) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from transferring any of such
Subsidiary's property or assets to the Company or any other Subsidiary of the
Company, except as described in the Registration Statement (excluding the
exhibits thereto) and the Prospectus.
(aaa) The issuance and sale of the Shares
as contemplated hereby will
not cause any holder of any shares of capital stock, securities convertible into
or exchangeable or exercisable for capital stock or options, warrants or other
rights to purchase capital stock or any other securities of the Company to have any right to acquire any
shares of preferred stock of the Company.
In
addition, any certificate signed by any officer of the Company or any of the
Subsidiaries and delivered to the Manager or counsel for the Manager in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
the Manager.
SECTION
3. Sale and Delivery of
Securities.
19
(a) On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to issue and sell through the Manager, as sales
agent, and the Manager agrees to use its commercially reasonable efforts to
sell, as sales agent for the Company, the Shares on the following terms.
(i) The Shares are to be sold on a daily
basis or otherwise as shall be agreed to by the Company and the Manager on any
day that (A) is a trading day for the NYSE (a "Trading
Day") (other than a Trading
Day on which the NYSE is scheduled to close prior to its regular weekday closing time),
(B) the Company has instructed the Manager by telephone (confirmed promptly by
electronic mail) from any of the individuals listed as authorized
representatives of the Company on Schedule C hereto (the "Authorized
Company
Representatives") to make
such sales and (C) the Company has satisfied its obligations under Section 5 of
this Agreement. The Company will designate the maximum number of
Shares to be sold by the Manager daily or as otherwise agreed to by the
Manager and the Company and
in any event not in excess of the amount of Shares available for issuance under
the currently effective Registration Statement or in excess of the amount of
Shares authorized from time to time to be issued and sold under this
Agreement by the Company's board of directors,
or a duly authorized committee thereof, and notified to the Manager in
writing. Subject to the terms and conditions hereof, the Manager
shall use its commercially reasonable efforts to offer and sell all of the
Shares designated on any day; provided,
however, that the Manager
shall have no obligation to offer or sell any Shares, and the Company
acknowledges and agrees that the Manager shall have no such obligation, in the
event an offer or sale of the Shares on behalf of the Company may in the judgment of
the Manager constitute the sale of a "block" under Rule 10b-18(a)(5) under
the Exchange Act or a "distribution" within the meaning of Rule 100 of
Regulation M under the Exchange Act or the Manager reasonably
believes it may be deemed an "underwriter" under
the Act in a transaction that is other than by means of ordinary brokers'
transactions between members of the NYSE that qualify for delivery of a
Prospectus to the NYSE in accordance with Rule 153 under the Act
(such ordinary brokers' transactions are
hereinafter referred to as "At the Market
Offerings").
(ii) Notwithstanding the foregoing, the
Company, through any of the Authorized Company Representatives, may instruct the
Manager by telephone (confirmed promptly by electronic mail from the Company) not to
sell the Shares if such sales cannot be effected at or above the price
designated by the Company in any such instruction, which price shall not be
below the par value of the Common Stock. In addition, the Company
or the Manager may, upon notice to the
other party hereto by
20
telephone (confirmed promptly by
electronic mail from such party), suspend the offering of the Shares;
provided, however, that such suspension shall not affect
or impair the parties' respective obligations with respect to the Shares sold
hereunder prior to the giving of such notice.
(iii) The Manager hereby covenants and agrees
not to make any sales of the Shares on behalf of the Company, pursuant to this
Section 3(a), other than (A) by means of At the Market Offerings and (B) such other sales
of the Shares on behalf of the Company in its capacity as agent of the Company
as shall be agreed by the Company and the Manager.
(iv) The compensation to the Manager, as an
agent of the Company, for sales of the Shares shall be 2% of the gross sales price of
the Shares sold pursuant to this Section 3(a). The remaining
proceeds, after further deduction for any transaction fees imposed by any
governmental or self-regulatory organization in connection with such sales,
shall constitute the net proceeds to the
Company for such Shares (the "Net
Proceeds").
(v) The Manager shall provide written
confirmation to the Company as soon as practicable following the close of
trading on the NYSE each day in which the Shares are sold under this Section 3(a) setting forth the
aggregate amount of the Shares sold on such day, the aggregate Net Proceeds to
the Company, and the aggregate compensation payable by the Company to the
Manager with respect to such sales.
(vi) Settlement for sales of the
Shares pursuant to this
Section 3(a) will occur on the third Trading Day following the date on which
such sales are made (provided that, if such third trading day is not a business
day (as defined below), then settlement will occur on the next succeeding
trading day that is also a business day),
unless another date shall be agreed upon by the Company and the Manager (each
such date, a "Settlement
Date"). As used
in the preceding sentence and in Section 6 below, the term "business day"
means any day other than a
Saturday, Sunday or other day on which commercial banks in The City of New York
are authorized or required by law, regulation or executive order to
close. On each Settlement Date, the Shares sold through the Manager
for settlement on such date shall be issued and delivered by the Company to
the Manager against payment of the Net Proceeds for the sale of such
Shares. Settlement for all such Shares shall be effected by free
delivery of the Shares by the Company or its transfer agent to the Manager's
account, or to the account of the Manager's
designee, at The Depository Trust Company ("DTC") through its Deposit and Withdrawal at
Custodian
21
System ("DWAC") or by such other means of delivery as
may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable,
transferable, registered shares eligible for delivery through DTC, in return for
payments in same day funds delivered to the account designated by the
Company. If the Company, or its transfer agent (if applicable), shall
default on its obligation to deliver the
Shares on any Settlement Date, the Company shall (A) indemnify and hold the
Manager harmless against any loss, claim or damage arising from or as a result
of such default by the Company and (B) pay the Manager any commission to which it would otherwise be
entitled absent such default. The Authorized Company Representatives,
or any designees thereof as notified to the Manager in writing, shall be the
contact persons for the Company for all matters related to the
settlement of the transfer of the Shares
through DWAC for purposes of this Section 3(a)(vi).
(vii) At each Time of
Sale, Settlement Date and Representation Date (as defined below), the Company
shall be deemed to have affirmed each representation and warranty
contained in this
Agreement. Any obligation of the Manager to use its commercially
reasonable efforts to sell the Shares on behalf of the Company shall be subject
to the continuing accuracy of the representations and warranties of the Company
herein, to the performance by the Company of its obligations
hereunder and to the continuing satisfaction of the additional conditions
specified in Section 5 of this Agreement.
(b) (i) If the Company wishes to issue
and sell the Shares other than as set forth in Section 3(a) of this Agreement or as set forth in
Section 3(a) of any Alternative Equity Distribution Agreement (each, a
"Placement"), it will notify the Manager of the
proposed terms of such Placement. If the Manager, acting as
principal, wishes to accept such proposed terms (which it may decline to do for
any reason in its sole discretion) or, following discussions with the Company,
wishes to accept amended terms, the Manager, the Company and, if applicable, the
Alternative Managers will enter into a Terms Agreement setting forth the terms of such
Placement. In the event of a conflict between the terms of this
Agreement and the terms of any Terms Agreement, the terms of such Terms
Agreement will control.
(ii) In the event the Company engages the Manager for a sale
of Shares that would
constitute the sale of a “block” under Rule 10b-18(a)(5) under the
Exchange Act or a “distribution,” within the meaning of Rule 100 of
Regulation M under the Exchange Act, the Company and the Manager will agree to
compensation that is customary for the Manager with respect to
such transactions.
22
aggregate gross sales proceeds
or the aggregate number of
the Shares sold pursuant to this Agreement and any Alternative Equity
Distribution Agreement would exceed the lesser of (A) the Maximum Amount,
(B) the amount available for offer and sale under the currently effective
Registration Statement and (C) the amount
authorized from time to time to be issued and sold under this Agreement and any
Alternative Equity Distribution Agreement by the Company's board of directors,
or a duly authorized committee thereof, and notified to the Manager in writing. Under no
circumstances shall the Company cause or request the offer or sale of any Shares
at a price lower than the minimum price authorized from time to time by the
Company's board of directors or a duly authorized committee thereof, and
notified to the Manager in
writing.
(ii) If either party has reason to believe
that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under
the Exchange Act are not satisfied with respect to the Shares, it shall promptly
notify the other party and
sales of the Shares under this Agreement and any Alternative Equity Sales
Distribution Agreement shall be suspended until that or other exemptive
provisions have been satisfied in the judgment of each party. Upon
the reasonable request of the Company in writing to the
Manager (which such request may be by electronic mail), the Manager shall
promptly calculate and provide in writing to the Company a report setting forth,
for the prior week, the average daily trading volume (as defined in Rule 100 of Regulation M under the
Exchange Act) of the Common Stock.
(d) Each sale of the Shares to or through
the Manager or any Alternative Manager, as applicable, shall be made in
accordance with the terms of this Agreement or, if applicable, a Terms
Agreement, or the
respective Alternative Equity Distribution Agreement or, if applicable, an
Alternative Terms Agreement, as applicable.
(e) Subject to such further limitations on
offers and sales of Shares or delivery of instructions to offer and sell
Shares as are set forth
herein, or in any Alternative Equity Distribution Agreement, and as may be
mutually agreed upon by the Company and the Manager or any Alternative Manager,
as applicable, offers and sales of Shares pursuant to this Agreement or any
Alternative Equity Distribution Agreement, as
applicable, shall not be requested by the Company and need not be made by the
Manager or any Alternative Manager, as applicable, at any time when or during
any period (i) in which the Company is or could be deemed to be in possession of material non-public
information, (ii) the Company's insider trading
policy, as then in effect, would prohibit the purchases or sales of the Company's
Common Stock by its officer or directors; provided that, unless otherwise agreed
between the Company and the Manager, for purposes of this clause (ii), such
period shall be deemed to end on the date on which the Company's next subsequent Annual Report on Form
10-K or 10-Q, as the case may be, is filed with the Commission or (iii) at any
time from and including the date on which the Company shall issue a press
release containing, or shall otherwise publicly announce, its earnings, revenues or other results of
operations (each, an "Earnings Announcement") through and including the time
that is 24 hours after the time that the Company files a Quarterly Report on
Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and
for the same period or periods, as the case may be, covered by such Earnings
Announcement.
(f) The Company acknowledges and agrees that
(A) there can be no assurance that the Manager or any Alternative Manager
will be successful in selling the Shares, (B) neither the Manager nor any
Alternative Manager will
incur liability or obligation to the Company or any other person or entity if it
does not sell Shares for any reason other than a failure by the Manager or any
Alternative Manager to use its commercially reasonable efforts consistent with
its normal trading and sales practices and
applicable law and regulations to sell such Shares in accordance with the terms
of this
23
Agreement or any Alternative Equity
Distribution Agreement, as applicable, and (C) neither the Manager nor any
Alternative Manager shall be under any obligation to purchase
Shares on a principal basis pursuant to this Agreement or any Alternative Equity
Distribution Agreement, as applicable, except as otherwise specifically agreed
in writing by the Manager and the Company or any Alternative Manager and the Company, as
applicable.
(g) The Company agrees that, during the term
of this Agreement, any offer to sell, any solicitation of an offer to buy, or
any sales of Shares or sales of Common Stock in Rule 415(a)(4) Offerings shall
only be effected by or
through the Manager or an Alternative Manager, but in no event by more than one
Manager on any single given day, and the Company shall in no event request that
the Manager or any Alternative Manager sell Shares on the same
day.
SECTION
4. Covenants of the
Company. The Company agrees with the Manager:
(a) To notify the Manager promptly of the
time on or after the date of this Agreement when the Registration Statement or
any amendment to the Registration Statement has been filed or become effective
or when the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any
supplement to any of the foregoing has been filed; to prepare and file with the
Commission, promptly upon the Manager's request, any amendments or supplements
to the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus that, in the Manager's
reasonable opinion, may be necessary or advisable in connection with the
offering of the Shares by the Manager; and to cause the Basic
Prospectus, the Prospectus Supplement and the
Prospectus and each amendment or supplement to the Basic Prospectus, the Basic
Prospectus or the Prospectus to be filed with the Commission as required
pursuant to the applicable paragraph of Rule 424(b) of the Act
(without reliance on Rule 424(b)(8))
or, in the case of any Incorporated Document, to be filed with the Commission as
required pursuant to the Exchange Act, within the time period prescribed; to
cause each Permitted Free Writing Prospectus to be filed with the Commission as required by
Rule 433 of the Act (to the extent such filing is required by such rule)
and to retain copies of each Permitted Free Writing Prospectus that is not
required to be filed with the Commission in accordance with Rule 433 of the
Act.
(b) To promptly advise the Manager,
confirming such advice in writing, of any suspension of the Manager's
obligations under Rule 15c2-8 under the Exchange Act or any request by the
Commission for amendments or supplements to the Registration Statement, the
Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus (in each case including,
without limitation, any Incorporated Document) or for additional information
with respect thereto, or of notice of examination, 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
24
or removal of such order as soon as possible; to
promptly advise the Manager of any proposal to amend or supplement the
Registration Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus (other than any amendment or supplement to be
effected by the Company's filing of a
report, document or proxy or information statement pursuant to Sections 13, 14
or 15(d) of the Exchange Act, which shall be subject to the provisions of
clause (2) of Section 4(d) below), and to provide the Manager
and its counsel copies of any such documents
for review and comment a reasonable amount of time prior to any proposed filing
and not to file or use any such amendment or supplement (other than any
prospectus supplement relating to the offering of other securities (including, without limitation, the
Common Stock)) to which the Manager shall have reasonably objected in
writing.
(c) To make available to the Manager, as
soon as practicable after this Agreement becomes effective, and thereafter from
time to time to furnish to
the Manager, as many copies of the Prospectus and each Permitted Free Writing
Prospectus (or of the Prospectus or any Permitted Free Writing 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 Manager may reasonably request for the purposes
contemplated by the Act; in case the Manager is required to deliver (whether
physically, deemed to be delivered pursuant to Rule 153 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, or after the time a post-effective amendment to the Registration
Statement is required pursuant to Item
512(a) of Regulation S-K under the Act, the Company will prepare, at its
expense, such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act or
Item 512(a) of Regulation S-K under the Act, as the case may
be.
(d) (1) Subject to clause (2) of
this Section 4(d), 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, deemed to
be delivered pursuant to Rule 153 or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares; and (2) to provide the
Manager, for its review, with a copy of any reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act a reasonable amount
of time prior to any proposed filing, and to promptly notify the Manager of such
filing.
(e) To pay the fees applicable to the
Registration Statement in connection with the offering of the Shares within the
time required by
Rule 456(b)(1)(i) under the Act (without reliance on the proviso to
Rule 456(b)(1)(i) under the Act) and in compliance with Rule 456(b)
and Rule 457(r) under the Act.
25
(f)
If the Company
receives from the Commission a notice pursuant to Rule 401(g)(2)
under the Act or otherwise
ceases to be eligible to use the automatic shelf registration statement form,
the Company will (a) promptly notify the Manager, (b) promptly file a new
registration statement or post-effective amendment on the proper form relating
to the Shares, in a form satisfactory to
the Manager, (c) use its best efforts to cause such registration statement or
post-effective amendment to be declared effective as soon as practicable (if
such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and (d)
promptly notify the Manager of such effectiveness. The Company will
take all other action necessary or appropriate to permit the public offering and
sale of the Shares to continue as contemplated in the Registration
Statement that was the subject of the notice
under Rule 401(g)(2) under the Act or for which the Company has otherwise become
ineligible. References herein to the Registration Statement relating
to the Shares shall include such new registration statement or post-effective amendment, as the case may
be.
(g) If immediately prior to the third
anniversary (the "Renewal
Deadline") of the initial
effective date of the Registration Statement, any of the Shares remain unsold by
the Manager, the Company will, prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Shares, in a form satisfactory to the
Manager. If the Company is not eligible to file an automatic shelf
registration statement, the Company will, prior to
the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Shares, in a form satisfactory to the
Manager, and will use its best efforts to cause such registration statement to be declared effective within
180 days after the Renewal Deadline. The Company will take all other
action necessary or appropriate to permit the public offering and sale of the
Shares to continue as contemplated in the expired registration statement. References herein to the
Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may
be.
(h) To promptly notify the Manager of the
happening of any event that could require the making of any change in the
Prospectus then being used so that the Prospectus would not include an untrue
statement of material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they are made, not
misleading and, subject to Section 4(b) and Section 4(d), to prepare
and furnish, at the Company's expense, to the Manager promptly such amendments
or supplements to such Prospectus as may be necessary to reflect any such
change; and to promptly notify the Manager
of the happening of any event that could require the making of any change in any
Permitted Free Writing Prospectus so that such Permitted Free Writing Prospectus
would not conflict with information contained in the Registration Statement, the Prospectus
or the Incorporated Documents or so that such Permitted Free Writing 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 were made, not misleading and, subject to Section 4(b) and
Section 4(d), to prepare and furnish,
26
at the Company's expense, to the Manager
promptly such amendments or supplements to such Permitted Free Writing Prospectus as may be necessary
to eliminate any such conflict or reflect any such change.
(i)
To furnish such information
as may be required and otherwise to cooperate in qualifying the Shares for
offering and sale under the securities or blue sky laws of such states or other jurisdictions
as the Manager may designate and to maintain such qualifications in effect so
long as required for the distribution of the Shares; provided, however, that the Company shall not be required
to qualify as a foreign corporation 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 the
Manager 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.
(j)
To make generally available to its
security holders, and to deliver to the Manager, 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) of the Act) as soon as is
reasonably practicable after the
termination of such twelve-month period but not later than eighteen months after
the effective date of the Registration Statement (as such date is defined in
Rule 158(c) under the Act).
(k) The Company shall pay all expenses
incident to the performance
of its obligations under this Agreement, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated, including
without limitation such costs, expenses, fees and taxes in connection with (i)
the preparation and filing of the
Registration Statement, the Basic Prospectus, the Prospectus, each Prospectus
Supplement, each Permitted Free Writing Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Manager (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, (iii) the producing, word processing and/or
printing of this Agreement, 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 Manager (including costs of mailing and shipment),
(iv) the qualification of the Shares for offering and sale under state laws
and the determination of their eligibility for investment under state or foreign
law (including the reasonable legal fees and filing fees and other
disbursements of U.S. or other foreign
counsel for the Manager) and the printing and furnishing of copies of any blue
sky surveys, (v) the listing of the Shares on the NYSE and any other
securities exchange and any registration thereof under the Exchange
Act, (vi) any filing with, and any
review of the public offering of the Shares by, FINRA, including the reasonable
legal fees and other reasonable disbursements of counsel for the Manager
relating to FINRA matters and (vii) the reasonable fees and
disbursements of the Company's and Manager's
27
counsel and of the Company's
accountants. Except as set forth on Annex
I hereto, the Manager will
pay all of its other out-of-pocket costs and expenses incurred in connection
with entering into this Agreement and the transactions contemplated by this Agreement,
including, without limitation, travel and similar expenses, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated.
(l)
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 Supplement.
(m)
Not to sell, offer to sell,
contract or agree to sell, hypothecate, pledge, grant any option to sell or
otherwise dispose of or agree to dispose of, directly or indirectly, or permit the registration under
the Act of, any shares of Common Stock or any other securities of the Company
that are substantially similar to the Common Stock ("Similar
Securities") or any
securities convertible into or exchangeable or exercisable for Common Stock or Similar Securities
(including without limitation, any options, warrants or other rights to purchase
Common Stock or Similar Securities), in each case without giving the Manager at
least three Trading Days' prior written notice specifying the nature of the proposed sale and
the date of such proposed sale. Notwithstanding the foregoing, the
Company may (i) register the offer and sale of the Shares through or to the
Manager or any Alternative Manager pursuant to this Agreement or any
Terms Agreement, Alternative Equity
Distribution Agreement or Alternative Terms Agreement, as applicable;
(ii) file registration statements relating to Common Stock that may be
issued pursuant to the Company's (a) dividend reinvestment and stock purchase
plan, (b) director and executive compensation
plans and (c) other employee benefit plans (in the case of (a), (b) and (c)
above, as such plans are described in the Company's reports filed with the
Commission under the Exchange Act); and (iii) issue shares of the Common Stock, issue options to
purchase shares of the Common Stock or make grants of other equity awards, each
pursuant to any of the plans referred to in clause (ii) above. In the
event that notice of a proposed sale is provided by the Company
pursuant to this Section 4(m), the Manager
may suspend activity under this Agreement for such period of time as may be
requested by the Company or as may be deemed appropriate by the
Manager.
(n) Not, at any time at or after the
execution of this Agreement, to 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 or a Permitted Free Writing Prospectus.
(o) The Company will not, and will cause its
Subsidiaries not to, take, directly or indirectly, any action designed, or which
will constitute, or has constituted, or might reasonably be expected to cause or
result in (i) the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or (ii) a violation
of Regulation M. The Company shall notify the Manager of any
violation of Regulation M by the Company or any Subsidiary or any of their
28
respective officers or directors promptly
after the Company has received notice or obtained knowledge of any such
violation.
(p) To use its best efforts to cause the
Common Stock to be listed on the NYSE and to maintain such
listing.
(q) To advise the Manager immediately after it shall have received
notice or obtain knowledge thereof, of any information or fact that would alter
or affect any opinion, certificate, letter and other document provided to the
Manager pursuant to Section 5 herein.
(r)
Upon commencement of
the offering of the Shares
under this Agreement (and upon the recommencement of the offering of the Shares
under this Agreement following the termination of a Suspension Period (as
defined below)), and each time that (i) the Registration Statement or the
Prospectus shall be amended or supplemented
(other than by the filing with the Commission of any document incorporated by
reference therein, which shall be subject to the provisions of
subclause (ii) below, and other than a prospectus supplement filed
pursuant to Rule 424(b) under the Act
relating solely to the offering of securities other than the Shares),
(ii) there is filed with the Commission any document incorporated by
reference into the Prospectus (other than a Current Report on Form 8-K,
unless the Manager shall otherwise reasonably request),
or (iii) the Manager may reasonably request (the date of commencement of
the offering of the Shares under this Agreement, the date of commencement of the
offering of the Shares under this Agreement following the termination of a Suspension Period and each
date referred to in subclauses (i), (ii) and (iii) above, each a
"Representation
Date"), to furnish or cause
to be furnished to the Manager forthwith a certificate of two of the Company's
executive officers, dated and delivered the Representation Date, in
form satisfactory to the Manager to the effect that the statements contained in
the certificate referred to in Section 5(e) of this Agreement which was
last furnished to the Manager are true and correct as of such Representation Date as though made at and
as of such date (except that such certificate shall state that such statements
shall be deemed to relate to the Registration Statement and the Prospectus and
to all Permitted Free Writing Prospectuses, in each case as amended and supplemented to such date)
or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in said Section 5(e), modified as necessary to
relate to the Registration Statement and the Prospectus and to all
Permitted Free Writing Prospectuses, in each
case as amended and supplemented to the time of delivery of such certificate;
provided
that the obligation of the
Company under this subsection (r) shall be deferred for any period that the
Company has suspended the offering of Shares pursuant to Section
3(a)(ii) hereof (each, a "Suspension
Period") and shall
recommence upon the termination of such Suspension Period.
(s) At each Representation Date, to furnish
or cause to be furnished forthwith to the Manager a written opinion of Bryan Cave LLP, counsel to the
Company, or its successors and assigns ("Company
Counsel"), or other counsel
satisfactory to the Manager, dated and delivered as of such Representation Date,
in form
29
and substance satisfactory to the
Manager, of the same tenor
as the opinion referred to in Section 5(c) of this Agreement, but modified
as necessary to relate to the Registration Statement and the Prospectus and to
all Permitted Free Writing Prospectuses, in each case as amended and
supplemented to the time of delivery of such opinion;
provided
that the obligation of the
Company under this subsection (s) shall be deferred for any Suspension Period
and shall recommence upon the termination of such Suspension
Period.
(t)
At each Representation Date,
to furnish or cause to be
furnished forthwith to the Manager a written opinion of Bryan Cave LLP, tax
counsel to the Company, or its successors and assigns ("Tax
Counsel"), or other counsel
satisfactory to the Manager, dated and delivered as of such Representation
Date, in form and substance
satisfactory to the Manager, of the same tenor as the opinion referred to in
Section 5(g) of this Agreement, but modified as necessary to relate to the
Registration Statement and the Prospectus and to any Permitted Free Writing
Prospectuses, in each case as amended and
supplemented to the time of delivery of such opinion; provided
that the obligation of the
Company under this subsection (t) shall be deferred for any Suspension Period
and shall recommence upon the termination of such Suspension Period.
(u) At each Representation Date, to furnish
or cause to be furnished to the Manager forthwith a certificate of the Secretary
or Assistant Secretary of the Company, dated and delivered as of such
Representation Date, in form and substance satisfactory to the Manager, of the same
tenor as the certificate referred to in Section 5(h) of this Agreement but
modified to relate to the Registration Statement and the Prospectus, in each
case, as amended and supplemented to the date of such certificate; provided
that the obligation of the
Company under this subsection (u) shall be deferred for any Suspension Period
and shall recommence upon the termination of such Suspension
Period.
(v) At each Representation Date, Skadden,
Arps, Slate, Meagher & Flom LLP, counsel to the Manager, shall deliver a
written opinion, dated and delivered as of such Representation Date, in form and
substance satisfactory to the Manager; provided
that the obligation of the
Company under this subsection (v) shall be deferred for any Suspension Period and shall recommence
upon the termination of such Suspension Period.
(w)
Upon commencement of the offering
of the Shares under this Agreement (and upon the recommencement of the offering
of the Shares under this Agreement following the termination of a Suspension Period), and each
time that (i) the Registration Statement or the Prospectus shall be amended
or supplemented to include additional or amended financial information (other
than an amendment or supplement effected by the filing with the Commission of any document
incorporated by reference therein, which shall be subject to the provisions of
subclauses (ii) and (iii) below), (ii) the Company shall file an annual
report on Form 10-K or a quarterly report on Form 10-Q,
(iii) upon request by the Manager and upon reasonable
advance notice to the Company,
30
there is filed with the Commission any
document (other than an annual report on Form 10-K or a quarterly report on
Form 10-Q) incorporated by reference into the Prospectus which contains
financial information, or (iv) the
Manager may reasonably request, to cause the Accountants, or other independent
accountants satisfactory to the Manager, forthwith to furnish the Manager a
letter, dated the date of the commencement of the offering, the date
of effectiveness of such amendment, the
date of filing of such supplement or other document with the Commission, or the
date of such request, as the case may be, in form and substance satisfactory to
the Manager, of the same tenor as the letter referred to in Section 5(d) of this Agreement
but modified to relate to the Registration Statement and the Prospectus and to
all Permitted Free Writing Prospectuses, in each case, as amended and
supplemented to the date of such letter; provided that the obligation of the Company under this subsection (w)
shall be deferred for any Suspension Period and shall recommence upon the
termination of such Suspension Period.
(x) At each Representation Date, to
conduct a due diligence session, in form and substance, satisfactory
to the Manager, which shall
include representatives of the management and the accountants of the Company;
provided
that the obligation of the
Company under this subsection (x) shall be deferred for any Suspension Period
and shall recommence upon the termination of such Suspension
Period.
(y) That the Company consents to the Manager
trading in the Common Stock for the Manager's own account and for the account of
its clients at the same time as sales of the Shares occur pursuant to this
Agreement.
(z)
If to the knowledge of the Company, any condition set
forth in Section 5(a), 5(j) or 5(k) of this Agreement shall not have been
satisfied on the applicable Settlement Date, to offer to any person who has
agreed to purchase the Shares from the Company as the result of an offer to purchase solicited by the
Manager the right to refuse to purchase and pay for such
Shares.
(aa) To use its best efforts to continue to
qualify for taxation as a REIT under Sections 856 through 860 of the
Code.
(bb) To disclose in its quarterly reports on
Form 10-Q and in its annual
report on Form 10-K the number of the Shares sold through or to the Manager
under this Agreement, the Net Proceeds to the Company and the compensation paid
by the Company with respect to sales of the Shares pursuant to this
Agreement during the relevant
quarter.
(cc) To ensure that prior to instructing the
Manager to sell Shares the Company shall have obtained all necessary corporate
authority for the offer and sale of such Shares.
(dd) That each acceptance by the Company of
an offer to purchase the
Shares hereunder shall be deemed to be an affirmation to the Manager that
the
31
representations and warranties of
the Company contained in or made pursuant to this Agreement are true and correct
as of the date of such acceptance as though made at and as of such date, and an undertaking
that such representations and warranties will be true and correct as of the
Settlement Date for the Shares relating to such acceptance, as though made at
and as of such date (except that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus and to all Permitted Free Writing
Prospectuses, in each case as amended and supplemented relating to such
Shares).
SECTION
5. Conditions of Manager's
Obligations. The obligations of the Manager hereunder are
subject to (i) the accuracy of the representations and warranties on the
part of the Company on the date hereof, any applicable Representation Date and
as of each Settlement Date, (ii) the performance by the Company of its
obligations hereunder and (iii) to the following additional conditions
precedent.
(a) (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, and no order directed at or in
relation to any document incorporated by reference therein and no order
preventing or suspending the use of the Prospectus has been issued by the
Commission, and no suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or to
the knowledge of the Company or the Manager of the initiation or threatening of
any proceedings for any of such purposes, has occurred; (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 Basic Prospectus 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 Prospectus, together with any combination of one or more of the Permitted
Free Writing Prospectuses, if any, 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.
(b) Subsequent to the respective dates as of
which information is given in the Registration Statement, the Basic Prospectus,
the Prospectus and the Permitted Free Writing Prospectuses, if any, no material
and unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, condition or prospects
of the Company and its Subsidiaries taken as a whole, in the judgment of the Manager, shall occur
or become known and no transaction which is material and unfavorable to the
Company (other than as referred to
32
in the Registration Statement and
Prospectus) in the judgment of the Manager, shall have been entered
into by the Company or any of its
Subsidiaries.
(c) The Company shall furnish to the
Manager, at every date specified in Section 4(s) of this Agreement, an opinion
of Company Counsel, addressed to the Manager, and dated as of such date, and in
form satisfactory to the
Manager, in substantially the form set forth in Exhibit
A
hereto.
(d) At the dates specified in
Section 4(w) of this Agreement, the Manager shall have received from the
Accountants letters dated the date of delivery thereof and addressed to the
Manager in form and
substance satisfactory to the Manager.
(e) The Company shall deliver to the
Manager, at every date specified in Section 4(r) of this Agreement, a
certificate of two of its executive officers to the effect that (i) the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of the Representation Date, (ii) the Company
has performed such of its obligations under this Agreement as are to be
performed at or before such Representation Date, and (iii) the conditions set forth in paragraphs (a) and
(b) of Section 5 have been met. The certificate shall also state that
the Shares have been duly and validly authorized by the Company, that all
corporate action required to be taken for the issuance and sale of the
Shares has been validly and sufficiently
taken, and that the Company's Board of Directors or any other body with
authority has not revoked, rescinded or otherwise modified or withdrawn such
authorization or corporate action.
(f)
The Manager shall have
received, at every date
specified in Section 4(v) of this Agreement, the favorable opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, counsel to the Manager, dated as of such
date, and in form and substance satisfactory to the Manager.
(g) The Company shall furnish to the Manager, at every date specified
in Section 4(t) of this Agreement, an opinion of Tax Counsel, addressed to the
Manager, and dated as of such date, and in form satisfactory to the Manager, in
substantially the form set forth in Exhibit
B
hereto.
(h) The Manager shall have received, at every
date specified in Section 4(u) of this Agreement, a certificate of the
Secretary or Assistant Secretary of the Company, dated as of such date, and in
form and substance satisfactory to the Manager.
(i)
At every date specified in Section 4(x) of this Agreement
and on such other dates as reasonably requested by the Manager, the Company
shall have conducted due diligence sessions, in form and substance satisfactory
to the Manager, which shall include the participation of representatives of the management of the
Company and the Accountants of the Company.
(j)
All filings related to the
offering of the Shares with the Commission required by Rule 424 or
Rule 433 under the Act shall have been made
33
within the applicable time period
prescribed for such filing
by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433,
respectively.
(k) The Shares shall have been approved for
listing on the NYSE, subject only to notice of issuance at or prior to the
Settlement Date.
SECTION
6. Indemnification and
Contribution.
(a) The Company agrees to indemnify, defend
and hold harmless the Manager and its affiliates, its and their directors,
officers, employees and agents and any person who controls the Manager 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), as
incurred, which, jointly or severally, the Manager 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 the
Manager furnished in writing by or on behalf of the Manager 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 or (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 6 being deemed to include any Basic
Prospectus, any Prospectus Supplement, any 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 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
the Manager furnished in writing by or on behalf of the Manager 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
34
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.
(b) The Manager 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 the Manager furnished in writing by or on
behalf of the Manager 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 the Manager
furnished in writing by or on behalf of the Manager to the Company expressly for
use in, the Prospectus Supplement 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 the
Prospectus Supplement or a 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 the Manager (as applicable, the "indemnifying
party") pursuant to
subsection (a) or (b), respectively, of this Section, 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. 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
35
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, as incurred, 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
6(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 6 is unavailable to an indemnified party under subsections (a) and (b) of this Section 6 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 Manager, on the other hand, from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand,
and of the Manager, 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 Manager, on the
36
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 Manager, bear to
the aggregate public offering price of the Shares. The relative fault
of the Company, on the one hand, and of the Manager, 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 Manager 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 Manager agree that
it would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation 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 6,
the Manager shall not be required to
contribute any amount in excess of commissions received by it under this
Agreement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such
fraudulent misrepresentation.
(f)
The Company and the Manager
agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Company, against any of the Company's
officers or directors in
connection with the issuance and sale of the Shares, or in connection with the
Registration Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus.
SECTION
7. Representations and
Agreements to Survive Delivery. The indemnity and contribution
agreements contained in Section 6 and the covenants, warranties and
representations of the Company contained in this Agreement or in certificates
delivered pursuant hereto shall remain in full force and effect regardless of
any investigation made by or on behalf of the Manager or any of its affiliates
or its or their directors, officers, employees or agents or any person
(including each director, officer, employee or agent of such person) who
controls the Manager 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.
SECTION
8. Termination.
(a) The Company shall have the right, by
giving written notice as hereinafter specified, to terminate the provisions of
this Agreement relating to the
37
solicitation of offers to purchase the Shares in its sole
discretion at any time. Any such termination shall be without
liability of any party to any other party except that (i) if any of the
Shares have been sold through the Manager for the Company, then
Section 4(z) shall remain in full force and effect,
(ii) with respect to any pending sale, through the Manager for the Company,
the obligations of the Company, including in respect of compensation of the
Manager, shall remain in full force and effect notwithstanding the termination and (iii) the provisions
of Sections 4(k), 6, 7, 9, 10, 11, 15, 16, 17, 18 and 19 of this Agreement shall
remain in full force and effect notwithstanding such
termination.
(b) The Manager shall have the right, by
giving written notice as hereinafter specified, to terminate the provisions
of this Agreement relating to the solicitation of offers to purchase the Shares
in its sole discretion at any time. Any such termination shall be
without liability of any party to any other party except that the provisions of Sections 4(k), 6, 7, 9, 10,
11, 15, 16, 17, 18 and 19 of this Agreement shall remain in full force and
effect notwithstanding such termination.
(c) This Agreement shall remain in full
force and effect unless terminated pursuant to Sections 8(a) or (b) above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual
agreement shall in all cases be deemed to provide that the provisions of
Sections 4(k), 6, 7, 9, 10, 11, 15, 16, 17, 18 and 19 of this Agreement shall
remain in full force and
effect notwithstanding such termination.
(d) Any termination of this Agreement shall
be effective on the date specified in such notice of termination; provided that such termination shall not be
effective until the close of business on the date of receipt of such notice by the
Manager or the Company, as the case may be. If such termination shall
occur prior to the Settlement Date for any sale of the Shares, such sale shall
settle in accordance with the provisions of Section 3(a)(vi) of this Agreement.
SECTION
9. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
under this Agreement shall be in writing and delivered by hand, overnight
courier, mail or facsimile and, if to the Manager, shall be sufficient in all
respects if delivered or sent to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, One Bryant Park, New York, NY 10036, Attention: Syndicate
Department, Fax No. (212) 230-8730, with a copy for information purposes
to Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park,
New York, NY 10036, Attention: ECM Legal, Fax No. (203) 719-0680 and,
if to the Company, it shall be sufficient in all respects if delivered or sent
to the Company at the offices of the Company at 200 International Circle,
Suite 3500, Hunt Valley, Maryland 21030, Attention: C. Taylor Pickett, Chief
Executive Officer, Fax No. (410) 427-1700. Each party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
SECTION
10. Parties at
Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Manager and the Company and to the
extent
38
provided
in Section 6 of this Agreement the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from the Manager) shall acquire or have any right under or by
virtue of this Agreement.
SECTION
11. No Fiduciary
Relationship. The Company hereby acknowledges that the Manager
is acting solely as sales agent and/or principal in connection with the purchase
and sale of the Company's securities. The Company further
acknowledges that the Manager is 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 Manager 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 Manager 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 Manager hereby expressly
disclaims 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
Manager 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 Manager 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
Manager 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.
SECTION
12. Press Releases and
Disclosure. The Company may issue a press release in
compliance with Rule 134 under the Act describing the material terms of the
transactions contemplated hereby as soon as practicable following the date
hereof, and may file with the Commission a Current Report on Form 8-K
describing the material terms of the transaction contemplated hereby, and the
Company shall consult with the Manager prior to making such disclosures, and the
parties shall use all reasonable efforts, acting in good faith, to agree upon a
text for such disclosures that is reasonably satisfactory to all
parties. No party hereto shall issue thereafter any Current Report on
Form 8-K or press release or like public statement (including, without
limitation, any disclosure required in reports filed with the Commission
pursuant to the Exchange Act) related to this Agreement or any of the
transactions contemplated hereby without the prior written approval, except as
may be necessary or appropriate in the opinion of the party seeking to make
disclosure to comply with the requirements of applicable law or stock exchange
rules. If any such press release or like public statement is so
required, the party making such
39
disclosure
shall consult with the other party prior to making such disclosure, and the
parties shall use all reasonable efforts, acting in good faith, to agree upon a
text for such disclosure that is reasonably satisfactory to all
parties.
SECTION
13. Adjustments for Stock
Splits. The parties acknowledge and agree that all share
related numbers contained in this Agreement shall be adjusted to take into
account any stock split effected with respect to the Shares.
SECTION
14. Entire
Agreement. This Agreement constitutes the entire agreement and
supersedes all other prior and contemporaneous agreements and undertakings, both
written and oral, among the parties hereto with regard to the subject matter
hereof.
SECTION
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.
SECTION
16. 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 internal
laws of the State of New York.
SECTION
17. Headings. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
SECTION
18. Submission to
Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against the Manager or
any indemnified party. Each of the Manager and the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives 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 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.
SECTION
19. Successors and
Assigns. This Agreement shall be binding upon the Manager and
the Company and their successors and assigns and any successor or assign of any
substantial portion of the Company's and the Manager's respective businesses
and/or assets.
40
SECTION
20. Miscellaneous. The
Manager, an indirect, wholly-owned subsidiary of Bank of America
Corporation, is not a bank and is separate from any affiliated bank, including
any U.S. branch or agency of Bank of America Corporation. Because the
Manager is a separately organized 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 the Manager 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.
[Signature
Page Follows]
41
If the
foregoing correctly sets forth the understanding between the Company and the
Manager, 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 Manager. Alternatively, the
execution of this Agreement by the Company and its acceptance by or on behalf of
the Manager may be evidenced by an exchange of telegraphic or other written
communications.
| Very truly yours, | |||
|
OMEGA
HEALTHCARE
INVESTORS,
INC.
|
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|
By:
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| Name: | |||
| Title: | |||
ACCEPTED
as of the date
first
above written
MERRILL
LYNCH, PIERCE FENNER & SMITH INCORPORATED
| By: |
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|
Name:
|
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|
Title:
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