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EXHIBIT 1
OMEGA HEALTHCARE INVESTORS, INC.
2,000,000 Shares
8.625% Series B Cumulative Preferred Stock
$1.00 Par Value
UNDERWRITING AGREEMENT
April 23, 1998
Smith Barney Inc.
A.G. Edwards & Sons, Inc.
c/o Smith Barney Inc.
388 Greenwich Street, 32nd Floor
New York, NY 10013
The undersigned, Omega Healthcare Investors, Inc., a Maryland corporation
(the "Company"), hereby addresses each you as the representatives (collectively
herein, the "Representative") of each of the persons, firms and corporations
listed on Schedule I hereto (collectively, the "Underwriters") and hereby
confirms our agreement with the several Underwriters as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to the
Underwriters 2,000,000 shares of its 8.625% Series B Cumulative Preferred
Stock, par value $1.00 per share (such 2,000,000 shares of 8.625% Series B
Cumulative Preferred Stock herein referred to as the "Shares")..
2. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, (a) the Company agrees to sell to the
Underwriters 2,000,000 of the Shares, (b) each such Underwriter agrees,
severally and not jointly, to purchase from the Company, pro rata, at a
purchase price of $25.00 per share, the number of Shares set forth opposite the
name of such Underwriter in Schedule I hereto.
The Company will deliver definitive certificates for the Shares through
the facilities of the Depository Trust Company for the accounts of the
Underwriters against payment to the Company by wire transfer (pursuant to wire
transfer instructions provided to the Underwriters by the Company), of the
aggregate purchase price for the Shares sold by them to the several
Underwriters, at the offices of Bryan Cave LLP, at 10:00 a.m., New York time,
on April 28, 1998 or on such other date not later than three full business days
thereafter as you and the Company may agree, such date of payment and delivery
being herein called the "Closing Date."
The number of Shares to be purchased by each Underwriter from the Company
shall be determined by multiplying 2,000,000 by a fraction, the numerator of
which is the number of Shares to be purchased by such Underwriter as set forth
opposite its name in Schedule I and the
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denominator of which is 2,000,000 (subject to such adjustments to eliminate any
fractional share purchases as you in your discretion may make). It is
understood that any Underwriter, individually, may (but shall not be obligated
to) make payment on behalf of the other Underwriters whose payment shall not
have been received prior to the Closing Date for Shares to be purchased by such
Underwriter. Any such payment by an Underwriter shall not relieve the other
Underwriters of any of their obligations hereunder.
It is understood that the Underwriters propose to offer the Shares to the
public upon the terms and conditions set forth in the Registration Statement
hereinafter defined.
3. [Reserved.]
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
(A) The Company represents and warrants to and agrees with each
Underwriter that as of the date hereof:
(i) The Company and the transactions contemplated by this
Agreement meet the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has prepared,
in conformity with the Act and the Rules and Regulations (the
"Rules and Regulations") of the Securities and Exchange Commission
(the "Commission"), and has filed a registration statement
(Registration No. 333-34763) on Form S-3 which has become effective
for the registration of up to $200,000,000 aggregate issue price of
securities including the Shares. Such registration statement, as
declared effective and each amendment thereto declared effective
through the date of this Agreement, meets the requirements set
forth in Rule 415(a) (1) of the Rules and Regulations and complies
in all material respects with such Rule and the Act. No stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Company, threatened by the Commission. The
Company has filed or will promptly file with the Commission
pursuant to Rule 424 of the Rules and Regulations a supplement to
the form of prospectus included in such registration statement
relating to the Shares and the plan of distribution of the Shares.
Copies of such registration statement, including any amendments
thereto, each related preliminary prospectus (meeting the
requirements of the Rules and Regulations) contained therein, the
exhibits, financial statements and schedules have heretofore been
delivered by the Company to you. The term "Registration Statement"
as used herein means such registration statement, including
financial statements and all exhibits and all documents
incorporated by reference therein. The term "Basic Prospectus"
mean the prospectus in the form in which it appears in the
Registration Statement; and such supplemented form of prospectus,
in the form in which it shall be filed with the Commission pursuant
to Rule 424 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Prospectus." Any preliminary form of the
Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the Preliminary Prospectus. All references in
this Agreement to financial statements and schedules and other
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information which is "contained", "included," "stated" or
"described" in the Registration Statement, Preliminary Prospectus
or the Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated by reference in, or deemed to be a part of, the
Registration Statement, Preliminary Prospectus or Prospectus, as
the case may be.
(ii) The Commission has not issued, and is not to the best
knowledge of the Company threatening to issue, an order preventing
or suspending the use of any Preliminary Prospectus or the
Prospectus nor instituted proceedings for that purpose. Each
Preliminary Prospectus at its date of issue, the Registration
Statement and the Prospectus and any amendments or supplements
thereto contains or will contain, as the case may be, all
statements which are required to be stated therein by, and in all
material respects conform or will conform, as the case may be, to
the requirements of, the Act and the Rules and Regulations.
Neither the Registration Statement nor any amendment thereto, as of
the applicable effective date, contains or will contain, as the
case may be, any untrue statement of a material fact or omits or
will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and
neither the Prospectus nor any supplement thereto contains or will
contain, as the case may be, any untrue statement of a material
fact or omits or will omit to state any material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representation, warranty or agreement as to information contained
in or omitted from the Registration Statement, the Preliminary
Prospectus or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters
specifically for use in the preparation of: (x) the last paragraph
of the cover page of the form of prospectus included in the
Registration Statement, any such Preliminary Prospectus or the
Prospectus, or any such amendment or supplement thereto or (y) the
statements therein regarding over-allotment, stabilization or
passive market making by the Underwriters or (z) the section
thereof under the caption "Underwriting."
(iii) The documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission,
complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and
the rules and regulations adopted by the Commission thereunder (the
"1934 Act Rules and Regulations"), and any further documents
incorporated by reference, will, when they are so filed, comply in
all material respects with the requirements of the 1934 Act and the
1934 Act Rules and Regulations. Such documents, when read together
and with the other information contained in the Prospectus, at the
time the Registration Statement became effective and at the Closing
Date, did not or will not, as the case may be, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or
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necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) The Company has full right and corporate power and
authority to enter into this Agreement and to perform the
transactions contemplated hereby. The filing of the Registration
Statement and the execution and delivery of this Agreement have
been duly authorized by the Board of Directors of the Company.
This Agreement constitutes a valid and legally binding obligation
of the Company enforceable in accordance with its terms (except to
the extent the enforceability of the indemnification, exculpation
and contribution provisions of Section 7 hereof may be limited by
applicable law, and except as enforceability of this Agreement may
be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws affecting creditors' rights
generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity
or at law). The issue and sale of the Shares by the Company and
the performance of this Agreement by the Company and the
consummation of the transactions herein contemplated will not
result in a violation of the Company's certificate of incorporation
or bylaws or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or its subsidiaries under, any
statute which is applicable to it, or under any indenture,
mortgage, deed of trust, note, loan agreement, sale and leaseback
arrangement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which they are bound or
to which any of the properties or assets of the Company or its
subsidiaries is subject, or any order, rule or regulation
applicable to the Company or any of its subsidiaries of any court
or public, regulatory or governmental agency or body having
jurisdiction over the Company or its subsidiaries or their
properties, other than any such breach, violation, default, lien,
charge or encumbrance, as the case may be, which does not
materially adversely affect the business of the Company and its
subsidiaries taken as a whole. No consent, approval,
authorization, order, registration or qualification of or with any
court or public, regulatory or governmental agency or body is
required for the consummation of the transactions herein
contemplated, except such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or under the
Act or the Rules and Regulations or any state securities laws.
(v) Except as described in the Prospectus, neither the Company
nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Prospectus any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, which loss or interference could
reasonably be expected to have a material adverse effect on the
business of the Company and its subsidiaries taken as a whole.
Except as contemplated in the Prospectus, subsequent to the
respective dates as of
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which information is given in the Registration Statement and the
Prospectus, the Company and its subsidiaries taken as a whole have
not incurred any material liabilities or material obligations,
direct or contingent, other than in the ordinary course of
business, or entered into any material transactions not in the
ordinary course of business, and there has not been any material
change in the capital stock or long-term debt of the Company and
its subsidiaries taken as a whole or any material adverse change in
the financial condition, net worth, business, management, or
results of operations of the Company and its subsidiaries taken as
a whole. The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and
paid all taxes shown as due thereon, except as are being contested
by the Company or its subsidiaries in good faith. All tax
liabilities, including those being contested by the Company or its
subsidiaries, are adequately provided for on the books of the
Company and its subsidiaries except to such extent as would not
materially adversely affect the business of the Company and its
subsidiaries taken as a whole. The Company and its subsidiaries
have made all necessary payroll tax payments and are current and
up-to-date as of the date of this Agreement to the extent necessary
to avoid a material adverse effect on the business of the Company
and its subsidiaries taken as a whole. The Company and its
subsidiaries have no knowledge of any tax proceeding or action
pending or threatened against the Company or its subsidiaries which
could materially adversely affect their business or property taken
as a whole.
(vi) The Company and its subsidiaries, have good and
marketable title to all real property or interests in real property
described in the Prospectus under the caption "Properties" (the
"Properties") as being owned by it or any of them, in each case
free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially
adversely affect the value of such property and interests and do
not interfere with the use made and proposed to be made of such
property and interests by the Company and its subsidiaries; the
Company and its subsidiaries have obtained satisfactory
confirmations (consisting of policies of title insurance or
commitments or binders therefor or opinions of counsel based upon
the examination of abstracts) confirming, except as otherwise
described in the Prospectus, (A) that the Company and its
subsidiaries have the foregoing title to such real property and
interests in real property, and (B) that the instruments securing
the Company's and its subsidiaries' real estate mortgage loans
create valid liens upon the real properties described in such
instruments enjoying the priorities intended, subject only to
exceptions to title which do not materially adversely affect the
value of such real properties and interests in relation to the
Company and its subsidiaries considered as one enterprise; and all
leases to which the Company or its subsidiaries is a lessee
relating to real property are valid and binding agreements of the
Company or a subsidiary and no default exists or is continuing
thereunder, and the Company or the subsidiary enjoys peaceful and
undisturbed possession under all such leases to which it is a party
as lessee.
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(vii) The Company is organized in conformity with the
requirements for qualification and as of the date hereof operates,
and as of the Closing Date will operate, in a manner that qualifies
the Company as a "real estate investment trust" (a "REIT") under
the Internal Revenue Code of 1986, as amended (the "Code"), and the
rules and regulations thereunder, and will continue to operate in
such a manner after consummation of the transactions contemplated
by the Prospectus and any Preliminary Prospectus.
(viii) The Company's ownership in Principal Healthcare Finance
Limited ("PHF") is less than 10% of the issued and outstanding
voting stock of PHF. The Company does not have any other voting
ownership interest in any other corporation in excess of 9.9%
except those corporations meeting the definition of qualified REIT
subsidiaries.
(ix) Except as described in the Prospectus, there is no
action, suit, arbitration, investigation or governmental
proceeding, domestic or foreign, pending or, to the best of the
Company's knowledge, threatened or involving the properties or
business of the Company or any of its subsidiaries which challenges
the validity of this Agreement or any action taken or required to
be taken by the Company pursuant to or in connection with this
Agreement or which could reasonably be expected to materially and
adversely affect the financial condition, operation, properties,
business or results of operations of the Company and its
subsidiaries taken as a whole. Neither the Company nor any of its
subsidiaries is a party or is subject to the provisions of any
injunction, judgment, decree or order of any court or any public,
regulatory or governmental agency or body which could reasonably be
expected to materially and adversely affect their business and
property taken as a whole or the Company's ability to consummate
the transactions contemplated herein. There are no contracts or
documents to which the Company or any of its subsidiaries is a
party which would be required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations
which have not been filed as exhibits to the Registration Statement
or incorporated by reference therein; the contracts and documents
to which the Company or any of its subsidiaries is a party which
are so described in the Registration Statement are in full force
and effect on the date hereof; and neither the Company nor any of
its subsidiaries nor, to the best knowledge of the Company, any
other party is in breach of or default under any of such contracts
to a material extent.
(x) The Company has duly and validly authorized capital stock
as described in the Prospectus. Except as disclosed in or
contemplated by the Prospectus and the financial statements of the
Company and the related notes thereto included in the Prospectus,
the Company does not have outstanding any options to purchase or
any preemptive rights or other rights to subscribe or to purchase,
any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any
such options, rights, convertible securities or obligations. The
Company's stock option plans and the
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options or other rights granted and exercised thereunder set forth
in the Prospectus accurately presents in all material respects the
information required to be shown with respect to such warrants,
plans, options and rights. All outstanding shares of capital stock
of the Company conform, and the Shares when issued will conform, in
all material respects to the description thereof in the
Registration Statement and the Prospectus and have been, or, when
issued and paid for will be, duly authorized, validly issued, fully
paid and nonassessable, issued in material compliance with all
applicable Federal and state securities laws except as would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole, and not issued in violation of or subject to any
preemptive rights or other rights to purchase or subscribe for
securities of the Company. No shareholder of the Company has any
right which has not been waived or satisfied to require the Company
to register the sales of any shares or other securities owned by
such shareholder under the Act in the public offering contemplated
by this Agreement. Upon delivery of the Shares to be sold by the
Company and full payment therefor pursuant to this Agreement, good
and valid title to such Shares, free and clear of all liens,
encumbrances, security interests, restrictions on transfer,
equities or claims whatsoever, will pass to the Underwriters.
(xi) The Company and its subsidiaries have each been duly
incorporated and are validly existing as corporations in good
standing under the laws of the states or other jurisdictions in
which they are incorporated, with full corporate power and
authority to own, lease and operate their properties and conduct
their businesses as described in the Registration Statement; the
Company and its subsidiaries are duly qualified to do business as
foreign corporations in good standing in each state or other
jurisdiction in which their ownership or leasing of property or
conduct of business legally requires such qualification, except
where the failure to be so qualified would not have a material
adverse effect on the ability of the Company and its subsidiaries
taken as a whole to conduct its or their business as described in
the Registration Statement. The Company does not own or control,
directly or indirectly, any corporation, association or other
entity other than the following directly or indirectly wholly-owned
subsidiaries: Bayside Street, Inc., OHI (Kansas), Inc., OHI
(Illinois), Inc., OHI (Florida), Inc., OHI (Clemmons), Inc., OHI
(Greensboro), Inc., Sterling Acquisition Corp., Sterling
Acquisition Corp. II, OS Leasing, Delta Investors I, LLC, Delta
Investors II, LLC and Jefferson Clark, Inc. The outstanding shares
of capital stock of the Company's subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and
are owned by the Company free and clear of any mortgage, pledge,
lien, encumbrance, charge or adverse claim. No options, warrants
or other rights to purchase, agreement or other obligations to
issue or other rights to convert any obligations into shares of
capital stock or ownership interests in the subsidiaries are
outstanding. None of the Company's subsidiaries owns or controls
directly or indirectly, any corporation, association or other
entity.
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(xii) Ernst & Young, LLP, the accounting firm which has
certified or reviewed portions of the financial statements filed
with the Commission as a part of the Registration Statement, some
of which are included in the Prospectus, is an independent public
accounting firm within the meaning of the Act and the Rules and
Regulations.
(xiii) The consolidated financial statements and schedules of
the Company and its subsidiaries, including the notes thereto,
filed with (through incorporation by reference or otherwise) and as
a part of the Registration Statement, are accurate in all material
respects and present fairly the consolidated financial position of
the Company and its subsidiaries as of the respective dates thereof
and the consolidated results of operations and statements of cash
flow for the respective periods covered thereby, all in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved except as
otherwise disclosed in the Prospectus. The selected financial data
included in the Registration Statement and Prospectus present
fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements and
pro forma financial statements as the case may be, in the
Registration Statement and Prospectus.
(xiv) Neither the Company nor any subsidiary is in default
with respect to any contract or agreement to which it is a party;
provided that this representation shall not apply to defaults which
in the aggregate could not materially adversely affect the
financial condition or the business of the Company and its
subsidiaries taken as a whole.
(xv) Neither the Company, any of its subsidiaries or, to the
best of the Company's knowledge, any lessee or sublessee of any
Property or any portion thereof, is in breach or violation of any
provision of its certificate of incorporation or bylaws or any
laws, ordinances or governmental rules or regulations to which it
is subject, including, without limitation, Section 13(b) of the
1934 Act, and neither the Company, any of its subsidiaries or, to
the best of the Company's knowledge, any lessee or sublessee of any
Property or any portion thereof, has failed to obtain, maintain or
comply with the terms of any of the material licenses,
certificates, permits, franchises, easements, consents, or other
governmental authorizations necessary to the ownership, leasing and
operation of its properties or to the conduct of its business,
which breach, violation or failure would materially adversely
affect the business, operations, properties, profits or financial
condition of the Company and its subsidiaries taken as a whole.
(xvi) Except as described in the Prospectus, the Company and
its subsidiaries own or possess, or can acquire on commercially
reasonable terms, such patent licenses, trademarks, service marks,
trade names and other intellectual property rights as are
materially necessary for the conduct of the businesses now operated
by them taken as a whole, and neither the Company nor any
subsidiary has
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received any notice from any party of any infringement of or
conflict with asserted rights of any other party with respect to
any patent licenses, trademarks, service marks, trade names or
other intellectual property rights which infringements or
violations, singly or in the aggregate, if the same were to be the
subject of an unfavorable judicial or governmental decision or
ruling against the Company or any of its subsidiaries which is
unappealable by the Company or any such subsidiary, would
materially adversely affect the business, operations or financial
condition of the Company and its subsidiaries taken as a whole.
(xvii) Except as described in the Prospectus, to the best of
the Company's knowledge: (i) there has been no storage, disposal,
generation, transportation, handling or treatment of hazardous
substances or solid wastes by the Company or any of its
subsidiaries (or to the best knowledge of the Company, any of their
predecessors in interest or any lessee or sublessee of any Property
or any portion thereof) at, upon or from any of the property now or
previously owned or leased by the Company, any of its subsidiaries
or, to the best of the Company's knowledge, any lessee or any
sublessee of any Property or any portion thereof, in violation of
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action which has
not been taken, under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or failure to take remedial action which would not result
in, singularly or in the aggregate with all such violations and
remedial actions, any material adverse change in the financial
condition, results of operations, business or properties of the
Company and its subsidiaries taken as a whole; and/or (ii) there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into
the environment surrounding such property by the Company, any of
its subsidiaries or, to the best of the Company's knowledge, any
lessee or any sublessee of any Property or any portion thereof, of
any solid waste or hazardous substances, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release
which would not result in, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, any material adverse change in the financial
condition, results of operation, business or properties of the
Company and its subsidiaries taken as a whole. For the purposes of
this paragraph, the term "hazardous substances" and "solid wastes"
shall have the meanings specified in any applicable local, state
and federal laws or regulations with respect to environmental
protection.
(xviii) No labor disturbance between the Company or any of its
subsidiaries and the employees thereof exists or, to the best
knowledge of the Company, is imminent which would have a material
adverse effect on the Company and its subsidiaries taken as a
whole.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or
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result in stabilization or manipulation of the price of the
Company's Common Stock or Preferred Stock, and the Company is not
aware of any such action taken or to be taken by affiliates of the
Company.
(xx) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xxi) The Company and each of its subsidiaries maintain
insurance of the types and in the amounts customarily maintained by
REITs engaged in activities similar to those of the Company, all of
which insurance is in full force and effect.
(xxii) The Preferred Stock of the Company is registered
pursuant to Section 12(b) of the Securities Exchange Act of 1934,
as amended, and is approved for trading on the New York Stock
Exchange ("NYSE") under the symbol "OHI PrB." The Company has
taken no action that was designed to terminate, or that is likely
to have the effect of terminating, trading of its Preferred Stock
on the NYSE, nor has the Company received any notification that the
Commission or the NYSE is contemplating terminating such trading.
(xxiii) The Company has complied with all provisions of
Florida Statutes, 517.075, relating to issuers doing business with
Cuba.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
5. ADDITIONAL COVENANTS. The Company covenants and agrees with the
several Underwriters that:
(a) If the Registration Statement is not effective under the Act,
the Company will use its best efforts to cause the Registration Statement
to become effective as promptly as possible, and it will notify you,
promptly after it shall receive notice thereof, and, if requested by you,
will confirm such notice in writing of the time when the Registration
Statement has become effective. The Company (i) will prepare and timely
file with the Commission under Rule 424(b) of the Rules and Regulations,
if required, a Prospectus containing information previously omitted at
the time of effectiveness of the Registration Statement in reliance on
the Rules and Regulations or otherwise, (ii) will not, except in
connection with subsequent offerings of securities under the shelf
registration after thirty (30) days following the consummation of the
transactions herein contemplated unrelated to the Shares, file any
amendment to the Registration Statement or supplement to the Prospectus
of which the Underwriters shall not previously have been advised and
furnished with a copy or to which the Underwriters shall have reasonably
objected in writing or which is not in compliance in all material
respects with the Rules and Regulations, and (iii) will promptly notify
you after it shall have received notice thereof and, if requested by you,
will confirm such notice in writing of the time when any amendment to
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the Registration Statement becomes effective or when any supplement to
the Prospectus has been filed.
(b) The Company will advise the Underwriters promptly, and, if
requested by you, will confirm such notice in writing after it has
received notice or obtained knowledge thereof, of any comments of the
Commission with respect to the Registration Statement, of any request of
the Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the use of the Prospectus or of the
institution or threat of any proceedings for that purpose, and the
Company will use its best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters and their
counsel in endeavoring to qualify the Shares for sale under (or obtain
exemptions from the application of) the securities laws of such
jurisdictions as they may have designated and will make such
applications, file such documents, and furnish such information as may be
reasonably necessary for that purpose, provided the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent or to subject itself to
taxation as doing business in any jurisdiction where it is not now so
taxed. The Company will, from time to time, file such statements,
reports, and other documents, as are or may be reasonably required to
continue such qualifications or exemptions in effect for so long a period
as the Underwriters may reasonably request. The Company will advise you
promptly of the suspension of the qualification or registration of (or
any such exemption relating to) the Shares for offering, sale or trading
in any jurisdiction or any initiation or threat of any proceeding for any
such purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company, with your
cooperation, will use its best efforts to obtain the withdrawal thereof.
(d) The Company will deliver to, or upon the order of, the
Underwriters, without charge from time to time, as many copies of any
Preliminary Prospectus (including all documents incorporated by reference
therein) as they may reasonably request. The Company will deliver to, or
upon the order of, the Underwriters without charge as many copies of the
Prospectus (including all documents incorporated by reference therein),
or as it thereafter may be amended or supplemented, as they may from time
to time reasonably request. The Company consents to the use of such
Prospectus by the Underwriters and by all dealers to whom the Shares may
be sold, in connection with the offering or sale of the Shares and for
such period of time thereafter as the Prospectus is required by law to be
delivered in connection therewith. The Company will deliver to you at or
before the Closing Date two signed copies of the Registration Statement
and all amendments thereto, including all exhibits filed therewith or
incorporated by reference therein, and all documents incorporated by
reference in the Prospectus, and will deliver to the Underwriters such
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number of copies of the Registration Statement, without exhibits, and of
all amendments thereto, as they may reasonably request.
The Company will not file, except in connection with subsequent
offerings of securities under the shelf registration after thirty (30)
days following the consummation of the transactions herein contemplated
unrelated to the Shares, any amendment to the Registration Statement or
make any amendment or supplement to the Prospectus or, prior to the end
of the period when, in the opinion of counsel for the Underwriters, a
prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or dealer, file any document which, upon filing
becomes an Incorporated Document, of which you shall not previously have
been advised or to which, after you shall have received a copy of the
document proposed to be filed, you shall reasonably object.
(e) If, during the period in which a prospectus is required by law
to be delivered by an Underwriter or dealer, any event shall occur as a
result of which, in the reasonable judgment of the Company or in your
reasonable judgment or in the written opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, not
misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law, the Company promptly will prepare and
file with the Commission an appropriate amendment to the Registration
Statement or supplement to the Prospectus so that the Prospectus as so
amended or supplemented will not, in the light of the circumstances when
it is so delivered, be misleading, or so that the Prospectus will comply
with applicable law.
(f) The Company will make generally available to its shareholders,
as soon as it is practicable to do so, but in any event not later than 15
months after the effective date of the Registration Statement, an
earnings statement in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement, which earnings statement shall satisfy the requirements of
Section 11(a) of the Act and Rule 158 of the Rules and Regulations and
will advise the Underwriters in writing when such statement has been so
made available.
(g) The Company will, for a period of five years from the Closing
Date, deliver to the Underwriters at their principal executive offices a
reasonable number of copies of annual reports, quarterly reports, current
reports and copies of all other documents, reports and information
furnished by the Company to its shareholders or filed with any securities
exchange or national securities market pursuant to the requirements of
such exchange or market or with the Commission pursuant to the Act or the
1934 Act and such other information concerning the Company as you may
request. The Company will deliver to the Underwriters similar reports
with respect to any significant subsidiaries, as that term is defined in
the Rules and Regulations, which are not consolidated in the Company's
financial statements. Any report, document or other information required
to be furnished under this paragraph (g) shall be furnished as soon as
practicable after such report, document or information becomes available.
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(h) The Company will apply the net proceeds from the sale of the
Shares as set forth in the description under "Use of Proceeds" in the
Prospectus.
(i) The Company will supply you with copies of all correspondence to
and from, and all documents issued to and by, the Commission in
connection with the registration of the Shares under the Act.
(j) Prior to the Closing Date, the Company will furnish to you, as
soon as they have been prepared, copies of any unaudited interim
consolidated financial statements of the Company and its subsidiaries for
any periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(k) Prior to 30 days after the Closing Date, the Company will not
issue any press releases or other communications directly or indirectly
and will hold no press conferences with respect to the Company or any of
its subsidiaries, the financial condition, results of operations,
business, properties, assets or liabilities of the Company or any of its
subsidiaries, or the offering of the Shares, without your prior written
consent except as otherwise required by law.
(l) The Company will use its best efforts to obtain approval for,
and maintain the quotation of the Shares on, the New York Stock Exchange.
(m) The Company and its subsidiaries will maintain and keep accurate
books and records reflecting their assets and will maintain internal
accounting controls which provide reasonable assurance that (i)
transactions are executed in accordance with management's authorization,
(ii) transactions are recorded as necessary to permit the preparation of
the Company's consolidated financial statements and to maintain
accountability for the assets of the Company and its subsidiaries, (iii)
access to the assets of the Company and its subsidiaries is permitted
only in accordance with management's authorization, and (iv) the recorded
accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase and pay for the Shares being sold hereunder by the
Company to the Underwriters shall be subject to the accuracy in all material
respects, as of the date hereof and as of the Closing Date, of the
representations and warranties of the Company contained herein, to the
performance in all material respects by the Company of its covenants and
obligations hereunder, and to the additional conditions set forth in this
Section 6.
(a) All filings required by Rule 424 of the Rules and Regulations
shall have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceeding for that purpose shall have been initiated or,
to the best knowledge of the Company or any Underwriter, threatened or
contemplated by the Commission, and any request of the Commission for
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additional information (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Underwriters.
(b) No person or entity shall have disclosed in writing to the
Company or the Underwriters on or prior to the Closing Date, that the
Registration Statement or Prospectus or any amendment or supplement
thereto contains an untrue statement of fact which, in the written
opinion of counsel to the Underwriters, is material, or omits to state a
fact which, in the written opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) On the Closing Date, you shall have received the opinion of
Argue Pearson Haribson & Myers, LLP counsel for the Company, addressed to
you and dated the Closing Date, to the effect that:
(i) The Company and its subsidiaries have been incorporated
and are validly existing as corporations in good standing under the
laws of the states or other jurisdictions in which they are
incorporated, with full corporate power and authority to own, lease
and operate their properties and conduct their businesses as
described in the Registration Statement. The Company and its
subsidiaries are duly qualified to do business as foreign
corporations in good standing in each state or other jurisdiction
in which their ownership or leasing of property or conduct of
business legally requires such qualification, except where the
failure to be so qualified would not have a material adverse effect
on the ability of the Company and its subsidiaries taken as a whole
to conduct their businesses as described in the Registration
Statement. Based solely on such counsel's review of the articles
or certificates of incorporation, bylaws, corporate minutes, and
such other governing instruments and corporate documents of the
Company's subsidiaries as such counsel deemed necessary or
advisable for such purpose, the outstanding shares of capital stock
of the Company's subsidiaries have been duly authorized and validly
issued and, so far as is known to such counsel, are owned by the
Company free and clear of any mortgage, pledge, lien, encumbrance,
charge or adverse claim, and are not the subject of any agreement
or understanding with any person. No options, warrants or other
rights to purchase, agreement or other obligations to issue or
other rights to convert any obligations into shares of capital
stock or ownership interests in the subsidiaries are outstanding.
(ii) The Company's authorized capital stock is as set forth
under the heading "Capitalization" in the Prospectus. All
outstanding shares of Common Stock, par value $.10 of the Company
and the Shares conform in all material respects to the description
thereof in the Prospectus under the heading "Description of Capital
Stock", and the statements in the Prospectus under such caption
fairly summarize in all material respects the provisions referred
to in the Company's certificate of incorporation, bylaws and the
law of the State of Maryland. The form of certificate used to
evidence the Shares filed as an exhibit to the Registration
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Statement has been approved by the Company's Board of Directors,
and assuming such certificate is signed by the proper and
authorized officers of the Company as required by the law of the
State of Maryland will comply as to form with the requirements of
such law. The outstanding shares of Common Stock of the Company
have been duly authorized and are validly issued, fully paid and
non-assessable, and were not issued in violation of or subject to
any preemptive rights or other rights to purchase or subscribe for
securities of the Company. The Shares to be sold by the Company
have been duly authorized and, when delivered and fully paid for in
accordance with this Agreement, will be validly issued, fully paid
and non-assessable, and the shareholders of the Company have no
preemptive rights with respect to the Shares. Except as disclosed
in the Prospectus, there are no outstanding options, warrants, or
other rights calling for the issuance of, and no present
commitments, plans or arrangements of the Company at this time to
issue any shares of capital stock of the Company or any security
convertible into or exchangeable for capital stock of the Company.
Upon delivery of the Shares to be sold by the Company and full
payment therefor pursuant to this Agreement and registration of the
ownership of such Shares by the transfer agent for such Shares,
good and valid title to such Shares free and clear of all liens,
encumbrances, security interests, restrictions on transfer,
equities or claims whatsoever other than those created or granted
by this Agreement or by the Underwriters, will pass to the
Underwriters.
(iii) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective
under the Act and, to the best knowledge of such counsel after
reasonable inquiry, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated
under the Act; any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) of the Rules and
Regulations has been made in accordance with Rule 424(b).
(iv) The Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective
or issue dates, comply as to form in all material respects with the
requirements of the Act and the applicable Rules and Regulations
(except that such counsel need express no opinion or belief as to,
financial and statistical data, financial statements and notes and
related schedules thereto). With respect to the documents
incorporated by reference in the Prospectus, such counsel has no
reason to believe, that on the date such documents were filed with
the Commission, such documents did not comply as to form in all
material respects with applicable requirements of the 1934 Act and
the applicable 1934 Act Rules and Regulations (except that such
counsel need express no opinion or belief as to financial and
statistical data, financial statements and notes and related
schedules thereto).
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(v) The descriptions in the Registration Statement and
Prospectus of contracts, agreements or other legal documents and
other documents filed as exhibits to the Registration Statement are
accurate in all material respects.
(vi) To the best knowledge of such counsel, no authorization,
approval, consent, order, registration or qualification of or with
any court or public, regulatory or governmental body, authority or
agency is required with respect to the Company in connection with
the transactions contemplated by this Agreement, except such as may
be required under the Act, the Rules and Regulations or the 1934
Act or by the NASD, the NYSE or under state laws in connection with
the purchase and distribution of the Shares by the Underwriters.
(vii) The Company has the corporate power and authority to
enter into this Agreement and to sell and deliver the Shares to be
sold by it to the several Underwriters. The filing of the
Registration Statement with the Commission has been duly authorized
by the Board of Directors of the Company. This Agreement has been
duly authorized, executed and delivered by the Company, and is a
valid, legal and binding agreement of the Company enforceable
against the Company in accordance with its terms (except to the
extent the enforceability of the indemnification, exculpation and
contribution provisions of Section 7 hereof may be limited by
applicable law and except as enforceability of this Agreement may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws affecting creditors'
rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity
or at law). The making and performance of this Agreement by the
Company and the consummation of the transactions herein
contemplated will not result in a violation of the Company's
certificate of incorporation or bylaws or to the best knowledge of
such counsel result in a breach or violation of any of the terms
and provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any of its subsidiaries
under, any applicable Federal or state statute, or under any
indenture, mortgage, deed of trust, note, loan agreement, lease,
franchise, license, permit or any other agreement or instrument
known to such counsel to which the Company or any of its
subsidiaries is a party or by which they are bound or to which any
of the properties or assets of the Company or its subsidiaries are
subject, or any order, rule or regulation known to such counsel of
any court or public, regulatory or governmental agency, authority
or body having jurisdiction over the Company or any of its
subsidiaries or their properties, except, in the case of any such
violation, breach, default, creation or imposition, to such extent
as does not materially adversely affect the business of the Company
and its subsidiaries taken as a whole.
(viii) To the best knowledge of such counsel after reasonable
inquiry, (A) there are no (individually or in the aggregate) legal,
governmental or regulatory proceedings pending or threatened to
which the Company or any
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subsidiary is a party or of which the business or properties of the
Company or any subsidiary is the subject which would have a
material adverse effect on the business or property of the Company
and its subsidiaries taken as a whole or on the ability of the
Company to consummate the transactions contemplated herein, and
which are not disclosed in the Registration Statement and
Prospectus; (B) there are no agreements, contracts, indentures,
leases or other documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement or any document
incorporated by reference to the Registration Statement which are
not described therein or filed as required; (C) neither the Company
nor any of its subsidiaries is a party or subject to the provisions
of any injunction, judgment, decree or order of any court or any
public, regulatory or governmental agency, authority or body which
would have a material adverse effect on the business or property of
the Company and its subsidiaries taken as a whole or on the ability
of the Company to consummate the transactions contemplated herein;
and (D) there are no applicable Federal or state statutes, orders,
rules or regulations required to be described in the Registration
Statement or Prospectus under the Act, the 1934 Act or applicable
state securities laws which are not described therein as required.
(ix) To the best knowledge of such counsel, the Company and
each of its subsidiaries hold all licenses, certificates, permits,
franchises, consents, authorizations and approvals from all state
and federal regulatory authorities, that are required for the
Company and its subsidiaries to conduct their business as described
in the Prospectus, except in the case of any such license,
certificate, permit, franchise, consent, authorization or approval
the loss of which or failure to maintain would not have a material
adverse effect on the business of the Company and its subsidiaries
taken as a whole.
(x) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856-860 of the Code for each
of the fiscal years ended December 31, 1992 through December 31,
1997, and the Company's current anticipated investments and its
current plan of operation will enable it to continue to meet the
requirements for qualification and taxation as a real estate
investment trust under the Code; actual qualification of the
Company as a real estate investment trust, however, will depend
upon the Company's continued ability to meet, and its meeting,
through actual annual operating results and distributions, the
various qualification tests imposed under the Code.
(xi) The Company and its subsidiaries are not in violation of
their certificates or articles of incorporation and bylaws. To the
best knowledge of such counsel, neither the Company nor any of its
subsidiaries is in breach of, or in default with respect to, any
provisions of any agreement, mortgage, deed of trust, lease, note,
agreement, franchise, license, indenture, permit or other
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or any of the properties thereof may be bound
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or affected, which breach or default would have a material adverse
effect on the business or property of the Company and its
subsidiaries taken as a whole or on the Company's ability to
consummate the transactions contemplated herein, and the Company
and its subsidiaries are in material compliance with all judgments,
decrees and orders of any court to which the Company or any of its
subsidiaries is subject, except where noncompliance would not have
a material adverse effect on the business of the Company and its
subsidiaries taken as a whole.
(xii) To the knowledge of such counsel, the Company is not an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(xiii) No holders of securities of the Company have rights
which have not been waived or satisfied which would entitle such
holders to require the registration of shares of Preferred Stock or
other securities as a result of the filing of the Registration
Statement by the Company or the offering contemplated hereby.
Such counsel shall confirm that during the preparation of the Registration
Statement and Prospectus, such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent certified public accountants for the Company and representatives of
the Underwriters, at which time the contents of the Registration Statement and
Prospectus and related matters were discussed and although such counsel is not
opining with respect to and does not assume any responsibility for the
accuracy, truthfulness, completeness or fairness of the statements contained in
the Registration Statement or Prospectus, such counsel confirms that no facts
have come to their attention which have caused them to believe that either (i)
the Prospectus or any supplement thereto (including the documents incorporated
by reference thereto) as of its date and as of the Closing Date (other than
financial or statistical data, the financial statements and notes or any
related schedules thereto, as to which such counsel need express no opinion or
belief) contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (ii) the Registration Statement or any amendment thereto
(including the documents incorporated by reference thereto) at the time it
became effective (other than financial or statistical data, the financial
statements and notes or any related schedules thereto, as to which such counsel
need express no opinion or belief) contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
In rendering the foregoing opinion, such counsel may expressly state that
it is qualified to render an opinion only as to matters involving the Federal
laws of the United States, the laws of the State of California and may rely as
to Maryland law on the opinion of Venable, Baetjer and Howard, LLP and as to
all matters of fact upon, among other things, certificates and written
statements of officers of the Company and government officials and the
representations and warranties of the Company contained herein; provided that
such counsel shall state that nothing has come to the attention of such counsel
that would reasonably cause such counsel to believe that they
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and the Underwriters are not justified in relying upon such certificates,
statements, representations and warranties.
(d) You shall have received on the Closing Date, from Bryan Cave
LLP, counsel to the Underwriters, such opinion or opinions, dated the
Closing Date with respect to corporate existence and good standing of the
Company, the validity of the Shares, the Registration Statement, the
Prospectus and such other related matters as you may reasonably require;
the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to opine with respect
to such matters
(e) On the business day immediately preceding the date of this
Agreement and on the Closing Date, you shall have received from Ernst &
Young LLP a letter or letters, dated the date of this Agreement and the
Closing Date, respectively, in form and substance reasonably satisfactory
to you, providing confirmation that they are independent public
accountants with respect to the Company within the meaning of the Act and
the published Rules and Regulations, and the answer to Item 509 of
Regulation S-K set forth in the Registration Statement is correct insofar
as it relates to them, and providing a statement similar in substance to
the one set forth in Schedule II hereto.
(f) Except as contemplated in the Prospectus, (i) neither the
Company nor any of its subsidiaries shall have sustained since the date
of the latest audited financial statements included in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and (ii)
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries shall have incurred any liability or obligation,
direct or contingent, or entered into transactions, and there shall not
have been any change in the capital stock or long-term debt of the
Company and its subsidiaries or any change in the financial condition,
net worth, business, management, or results of operations of the Company
or its subsidiaries, the effect of which, in any such case described in
clause (i) or (ii), is in your reasonable judgment so material or
materially adverse as to make it impracticable to proceed with the public
offering or the delivery of the Shares being delivered on such Closing
Date on the terms and in the manner contemplated in the Prospectus.
(g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or the Nasdaq
National Market ("NNM") or the establishing on such exchanges or the NNM
by the Commission or by such exchanges or the NNM of minimum or maximum
prices which are not in force and effect on the date hereof; (ii) a
general moratorium on commercial banking activities declared by either
federal or state authorities; (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, any calamity or crisis, material
change in national, international or world affairs, natural disaster,
material change
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in the international or domestic markets, or material change in the
existing financial, political or economic conditions in the United States
or elsewhere, or the enactment, publication, decree, or other
promulgation of any federal or state statute, regulation, rule, or order
of any court or other governmental authority, or the taking of any action
by any federal, state or local government or agency in respect of fiscal
or monetary affairs, if the effect of any such event specified in this
clause (iii) is in your reasonable judgment so material or materially
adverse as to make it impracticable to proceed with the public offering
or the delivery of the Shares on the terms and in the manner contemplated
in the Prospectus.
(h) As a condition precedent to the several obligations of the
Underwriters to purchase and pay for the Shares being sold hereunder by
the Company, you shall have received a certificate or certificates, dated
the Closing Date and signed on behalf of the Company by the Chairman and
by the President and Chief Executive Officer of the Company stating that
(i) such party has carefully examined the Registration Statement and the
Prospectus as amended or supplemented and all documents incorporated by
reference therein and nothing has come to such party's attention that
would lead him to believe that either the Registration Statement or the
Prospectus, or any amendment or supplement thereto or any documents
incorporated by reference therein as of their respective effective, issue
or filing dates, contained, or the Prospectus as amended or supplemented
and all documents incorporated by reference therein and when read
together with the documents incorporated by reference therein, at such
Closing Date, contains any untrue statement of a material fact, or omits
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that such party
makes no representation, warranty or agreement as to information
contained in or omitted from the Registration Statement, the Preliminary
Prospectus or the Prospectus, or any such amendment or supplement
thereto, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters specifically
for use in the preparation of: (x) the last paragraph of the cover page
of the form of prospectus included in the Registration Statement, such
Preliminary Prospectus or the Prospectus, or any such amendment or
supplement thereto or (y) the statements therein regarding
over-allotment, stabilization or passive market making by the
Underwriters or (z) the section thereof under the caption "Underwriting"
and that (ii) all representations and warranties made herein by the
Company are true and correct in all material respects at such Closing
Date, with the same effect as if made on and as of such Closing Date, and
all agreements herein required to be performed by the Company on or prior
to such Closing Date have been duly performed in all material respects
and (iii) such other matters as you may reasonably request.
(i) As a condition precedent to the several obligations of the
Underwriters to purchase and pay for the Shares being sold hereunder by
the Company, the Company shall not have failed, refused, or been unable,
on or by the Closing Date to have performed in all material respects any
agreement on its part required to be performed by it or any of the
conditions herein contained and required to be performed or satisfied by
it at or prior to the Closing Date.
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(j) The Shares shall have been approved for trading upon official
notice of issuance on the NYSE under the symbol "OHI PrB."
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Bryan Cave LLP, counsel for the several Underwriters. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you may reasonably request. Any
certificate or document signed by an officer of the Company and delivered to
you, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company to
each Underwriter as to the statements made therein.
If any of the conditions specified above in this Section 6 shall not have
been satisfied at or prior to the Closing Date or waived by you in writing,
this Agreement may be terminated by you on written notice to the Company.
7. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each Underwriter
and its officers and directors and each person, if any, who controls any
Underwriter within the meaning of the Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter,
officer, director or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, in any Preliminary Prospectus, in the Prospectus,
or in any amendment or supplement thereto, or in any Blue Sky application
or other document executed by the Company or based on any information
furnished in writing by the Company and filed in any jurisdiction in
order to qualify any or all of the Shares under (or obtain exemption
from) the securities laws thereof ("Blue Sky Application"), or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and will reimburse each Underwriter and each such
officer, director and controlling person for any legal or other expenses
reasonably incurred by such Underwriter, officer, director or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company
shall not be liable in any such case to the extent, but only to the
extent, that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission
or alleged omission that is: (i) contained in the Registration Statement,
such Preliminary Prospectus, the Prospectus, or any such amendment or
supplement thereto, or in such Blue Sky Application or such other
document and (ii) both relates to and was made in reliance upon and in
conformity with written information furnished to the Company by you or by
any Underwriter through you, specifically for use in the preparation of:
(x) the last paragraph of the cover page of the form of prospectus
included in the Registration Statement, such Preliminary Prospectus or
the Prospectus, or any such amendment or supplement thereto or (y) the
statements therein regarding over-allotment, stabilization or
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passive market making by the Underwriters or (z) the section thereof
under the caption "Underwriting;" and provided, further, that if any
Preliminary Prospectus or the Prospectus contained any alleged untrue
statement or allegedly omitted to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and
such statement or omission shall have been corrected in a revised
Preliminary Prospectus or in the Prospectus or in an amended or
supplemented Prospectus, the Company shall not be liable to any
Underwriter, officer, director or controlling person under this paragraph
(a) with respect to such alleged untrue statement or alleged omission to
the extent that any such loss, claim, damage or liability of such
Underwriter, officer, director or controlling person results from the
fact that such Underwriter sold Shares to a person or entity to whom
there was not sent or given, at or prior to the written confirmation of
such sale, such revised Preliminary Prospectus or Prospectus or amended
or supplemented Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the
Registration Statement and, each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director,
officer or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus,
any amendment or supplement thereto, or any Blue Sky Application or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to
the extent, that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission that is: (i) contained in the Registration
Statement, such Preliminary Prospectus, the Prospectus, or any such
amendment or supplement thereto, or in such Blue Sky Application or such
other document and (ii) both relates to and was made in reliance upon and
in conformity with written information furnished to the Company by you or
by any Underwriter through you, specifically for use in the preparation
of: (x) the last paragraph of the cover page of the form of prospectus
included in the Registration Statement, such Preliminary Prospectus or
the Prospectus, or any such amendment or supplement thereto or (y) the
statements therein regarding over-allotment, stabilization or passive
market making by the Underwriters or (z) the section thereof under the
caption "Underwriting;" and each Underwriter will reimburse the Company
and each such director, officer and controlling person for any legal or
other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action.
(c) Any party which proposes to assert the right to be indemnified
under this Section 7 shall, within ten days after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an
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indemnifying party under this Section 7, notify each such indemnifying
party of the commencement of such action, suit or proceeding, enclosing a
copy of all papers served, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not
relieve such indemnifying party from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any
such action, suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in, and,
to the extent that it shall wish, jointly with any other indemnifying
party, similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its own counsel in any
such action, but the fees and expenses of such counsel shall be solely at
the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party at the expense of the indemnifying
party has been authorized in writing by the indemnifying party, (ii) the
indemnified party shall have been advised by such counsel in a written
opinion that there may be a conflict of interest between the indemnifying
party and the indemnified party in the conduct of the defense, or certain
aspects of the defense, of such action (in which case the indemnifying
party shall not have the right to direct the defense of such action with
respect to those matters or aspects of the defense on which a conflict
exists or may exist on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in any of which events the reasonable fees and
expenses of such party to the extent applicable shall be borne by the
indemnifying party. An indemnifying party shall not be liable for any
settlement of any action or claim effected without its prior written
consent. Each indemnified party, as a condition of such indemnity, shall
furnish such information concerning itself or the claim in question as an
indemnifying party may reasonably request in connection with the defense
of such claim and shall cooperate in good faith with the indemnifying
party in the defense of any such action or claim.
(d) If the indemnification provided for in this Section 7 is for any
reason, other than pursuant to the terms hereof, judicially determined
(by the entry of a final judgment or decree by a court of competent
jurisdiction and upon the expiration of time to appeal or the denial of
the last right to appeal) to be unavailable to an indemnified party under
paragraphs (a), (b) or (c) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company, and
the Underwriters from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
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benefits but also the relative fault, as applicable, of the Company, the
Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as other relevant equitable considerations.
The relative benefits received by, as applicable, the Company, and the
Underwriters shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this paragraph (d) were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in
this paragraph (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this paragraph (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this paragraph (d),
no Underwriter shall be required to contribute any amount in excess of
the aggregate underwriting discounts and commissions applicable to the
Shares purchased by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
paragraph (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company contained in
Sections 4, 5, 7 and 11 herein or in certificates delivered pursuant hereto,
and the agreements of the Underwriters contained in Sections 7 and 11 hereof,
and the liability of a defaulting Underwriter, if any, pursuant to Section 9
hereof, shall remain operative and in full force and effect regardless of any
termination or cancellation of this Agreement or any investigation made by or
on behalf of any Underwriter or any controlling person thereof, the Company or
any of its officers, directors or any controlling person thereof, and shall
survive delivery of the Shares to the Underwriters hereunder.
9. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties reasonably
satisfactory to the Company to purchase such Shares on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then the
Company shall be entitled to a further period of thirty-six hours within
which to procure another party
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or parties reasonably satisfactory to you to purchase such Shares on such
terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such
Shares, or the Company notifies you that they have so arranged for the
purchase of such Shares, you or the Company shall have the right to
postpone the Closing Date for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in the written opinion
of your counsel may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any persons substituted under this
Section 9 with like effect as if such person had originally been a party
to this Agreement with respect to such Shares and any such substituted
person shall be entitled to all of the benefits conferred hereby and
shall be subject to all of the obligations of an Underwriter hereunder as
if such person had originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters made by you or the
Company as provided in paragraph (a) above, the aggregate number of
Shares which remains unpurchased does not exceed one tenth of the total
Shares to be sold on the Closing Date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the Shares
which such Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters made by you or the
Company as provided in paragraph (a) above, the number of Shares which
remains unpurchased exceeds one tenth of the total Shares to be sold on
the Closing Date, or if the Company shall not exercise the right
described in paragraph (b) above to require the non-defaulting
Underwriters to purchase the unpurchased Shares of the defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 11 hereof and the
indemnity and contribution agreements in Section 7 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 1:00 p.m., New York
time, on the first business day following the filing of the final
supplement to the Prospectus describing the Shares, or at such earlier
time after the effective date of the Registration Statement as you in
your discretion shall first release the Shares for offering to the
public; provided, however, that the provisions of Section 7 and 11 shall
at all times be effective.
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For the purposes of this Section 10(a), the Shares shall be deemed to
have been released to the public upon release by you of the publication
of a newspaper advertisement relating to the Shares or upon release of
telegrams, facsimile transmissions or letters offering the Shares for
sale to securities dealers, whichever shall first occur.
(b) This Agreement may be terminated by you at any time before it
becomes effective in accordance with Section 10(a) by notice to the
Company; provided, however, that the provisions of this Section 10 and of
Section 7 and Section 11 hereof shall at all times be effective. In the
event of any termination of this Agreement pursuant to Section 9 or this
Section 10(b) hereof, the Company shall not then be under any liability
to any Underwriter except as provided in Section 7 or Section 11 hereof.
(c) This Agreement may be terminated by you at any time at or prior
to the Closing Date by notice to the Company if any condition specified
in Section 6 hereof required to be satisfied by the Company shall not
have been satisfied by the Company in all material respects on or prior
to the Closing Date. Any such termination shall be without liability of
any party to any other party except as provided in Sections 7 and 11
hereof.
If you terminate this Agreement as provided in Sections 10(b) or 10(c),
you shall notify the Company in writing or by telephone or telegram, confirmed
by letter.
11. COSTS AND EXPENSES. The Company will bear and pay the costs, fees and
expenses incident to the registration of the Shares and public offering
thereof, including, without limitation, (a) the fees and expenses of the
Company's accountants and the fees and expenses of counsel for the Company, (b)
the preparation, printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any amendments or
supplements thereto (except as otherwise expressly provided in Section 5(d)
hereof) and the printing, delivery and shipping of this Agreement, the Master
Agreement Among Underwriters, [the Selected Dealer Agreement, Underwriters'
Questionnaires] and Powers of Attorney and Blue Sky Memoranda, to the
Underwriters, (c) the furnishing of copies of such documents (except as
otherwise expressly provided in Section 5(d) hereof), (d) the registration or
qualification (or obtaining exemption therefrom) of the Shares for offering and
sale under the securities laws of the various states, including the reasonable
fees and disbursements of Underwriters' counsel relating to such registration
or qualification, (e) the fees payable to the NASD and the Commission in
connection with their review of the proposed offering of the Shares, (f) all
printing and engraving costs related to preparation of the certificates for the
Shares, including transfer agent and registrar fees, (g) all initial transfer
taxes, if any, (h) all fees and expenses relating to the authorization of the
Shares for trading on the NYSE, (i) all travel expenses, including air fare and
accommodation expenses, of representatives of the Company in connection with
the offering of the Shares and (j) all of the other costs and expenses incident
to the performance by the Company of the registration and offering of the
Shares; provided, however, that the Underwriters will bear and pay all of the
fees and expenses of the Underwriters' counsel (other than fees and
disbursements relating to the registration or qualification of the Shares for
offering and sale under the securities laws of the various states), the
Underwriters' out-of-pocket expenses, and any advertising costs and expenses
incurred by the Underwriters incident to the public offering of the Shares.
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If this Agreement is terminated by you in accordance with the provisions
of Section 10(c), the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters.
12. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o Salomon Smith Barney, at 388 Greenwich Street,
32nd Floor, New York, NY 10013, Attention: David F. Gately, facsimile number
(212) 816-7931 and c/o A.G. Edwards & Sons, Inc., at One North Jefferson
Avenue, St. Louis, Missouri 63103, Attention: Douglas D. Rubenstein, facsimile
number (314) 955-7387, or if sent to the Company shall be mailed, delivered,
sent by facsimile transmission, or telegraphed and confirmed to the Company at
Omega Healthcare Investors, Inc., 905 West Eisenhower Circle, Suite 110, Ann
Arbor, MI 48103, Attention: President, facsimile number (313) 996-0020. Notice
to any Underwriter pursuant to Section 7 shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed to such Underwriter's
address as it appears in the Underwriters' Questionnaire furnished in
connection with the offering of the Shares or as otherwise furnished to the
Company. Any party hereto may change such address or facsimile number for
notices by sending to the other parties to this Agreement written notice of a
new address or facsimile number for such purpose.
13. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Company, the Underwriters, and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person, corporation, partnership or other entity,
other than the parties hereto and their respective successors and assigns and
the controlling persons, officers and directors referred to in Section 7, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective successors and assigns and
said controlling persons and said officers and directors, and for the benefit
of no other person, corporation, partnership or other entity. No purchaser of
any of the Shares from any Underwriter shall be construed a successor or assign
hereunder by reason merely of such purchase.
In all dealings with the Company under this Agreement you shall act on
behalf of each of the several Underwriters, and the Company shall be entitled
to act and rely upon any statement, instruction, demand, request, notice or
agreement on behalf of the Underwriters, made or given by you on behalf of the
Underwriters, as if the same shall have been made or given in writing by all of
the Underwriters.
14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
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15. PRONOUNS. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
16. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other section, paragraph or provision hereof.
17. GENERAL. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written and oral agreements
and all contemporaneous oral agreements, undertakings and negotiations with
respect to the subject matter hereof. The section headings in this Agreement
are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be
amended or modified, and the observance of any term of this Agreement may be
waived, only by a writing signed by the Company and by you or, in the case of a
waiver, by the party waiving compliance.
18. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed within the State of New York without giving effect to the
provisions thereof regarding the choice of law.
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If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for such purpose, whereupon this letter
shall constitute a binding agreement among the Company and the Underwriters.
Omega Healthcare Investors, Inc.
By: /s/ David A. Stover
-------------------------------
Name: David A. Stover
-------------------------------
Title: Chief Financial Officer
-------------------------------
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Accepted in New York, New York and
St. Louis, Missouri, respectively, as of
the date first above written, on behalf of
ourselves and each of the several Underwriters
named in Schedule I hereto.
SMITH BARNEY INC.
As Representative for the Several Underwriters
By: /s/ David F. Gately
-----------------------------------
Name: David F. Gately
Title: Managing Director
A.G. EDWARDS & SONS, INC.
As Representative for the Several Underwriters
By: /s/ Douglas D. Rubenstein
-----------------------------------
Name: Douglas D. Rubenstein
Title: Managing Director
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SCHEDULE I
Name Number of Shares
- ---- ----------------
Smith Barney Inc. 400,000
A.G. Edwards & Sons, Inc......... 400,000
Cowen & Company.................. 400,000
EVEREN Securities, Inc........... 400,000
Morgan Stanley & Co. Incorporated 400,000
---------
Total........................... 2,000,000
=========
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SCHEDULE II
Pursuant to Section 6(g) of the Underwriting Agreement, Ernst &
Young LLP shall furnish letters to the Underwriters substantially to the
effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable Rules and Regulations thereunder.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial information)
examined by them and included in the Prospectus or the Registration
Statement comply as to form with the applicable accounting requirements
of the Act and the Rules and Regulations with respect to registration
statements on Form S-3, and they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the interim financial statements, selected financial data,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company and its
subsidiaries for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been furnished to the
Representative of the Underwriters (the "Representative")
(iii) On the basis of a reading of the unaudited financial
statements, pro forma financial statements and other information
contained in the Prospectus, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included in the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) any of the above unaudited financial statements or other
information contained in the Prospectus do not comply as to form
with the accounting requirements of the Rules and Regulations or
that such unaudited financial statements are not fairly presented
in conformity with generally accepted accounting principles applied
on a basis substantially consistent with the audited financial
statements;
(B) as of a specified date not more than two days prior to the
date of such letter, there have been any changes in the capital
stock or any increase in the indebtedness of the Company and its
subsidiaries, or any increases or decreases in net current assets
or net assets or any changes in any other items specified by the
Representative, in each case as compared with amounts shown in the
latest balance sheet included in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; or
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(C) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in clause (B) above there were any decreases in
revenues or the total or per share amounts of net income, or any
other changes in any items specified by the Representative, in each
case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by the
Representative, except in each case for changes or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter.
(iv) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraph
(iii) above, they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representative, which are derived from the
general accounting records of the Company and its subsidiaries for the
periods covered by their reports and any interim or other periods since
the latest period covered by their reports, which appear in the
Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representative, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
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