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EXHIBIT 1
OMEGA HEALTHCARE INVESTORS, INC.
DEBT SECURITIES
Underwriting Agreement
June 5, 1998
To the Representatives named in
Schedule I hereto of the
Underwriters named in Schedule II
hereto
Ladies and Gentlemen:
Omega Healthcare Investors, Inc., a Maryland corporation (the
"COMPANY"), proposes to issue and sell to the underwriters named in Schedule II
hereto (the "UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), the principal amount of its debt securities identified in
Schedule I hereto (the "SECURITIES"), to be issued under the indenture specified
in Schedule I hereto (the "INDENTURE") between the Company and NBD Bank (the
"TRUSTEE"). If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "SECURITIES ACT"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain debt securities (the "SHELF SECURITIES") to be issued from time to time
by the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "REGISTRATION
STATEMENT" and the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"BASIC PROSPECTUS". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "PROSPECTUS".
If the Company has filed an abbreviated registration statement
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pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement. Any reference
in this Agreement to the Registration Statement, the Basic Prospectus, any
preliminary form of Prospectus (a "PRELIMINARY PROSPECTUS") previously filed
with the Commission pursuant to Rule 424 or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the third Business Day (as defined below) thereafter,
as you and the Company may agree in writing). As used herein, the term "BUSINESS
DAY" means any day other than a day on which banks are permitted or required to
be closed in New York City. The time and date of such payment and delivery
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with respect to the Designated Securities are referred to herein as the "CLOSING
DATE".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "GLOBAL
NOTE") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representatives at the office of J.P. Morgan Securities Inc. at the address set
forth above not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date.
4. The Company represents and warrants to and agrees with each
Underwriter that as of the date hereof and as of the Closing Date:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act, and has prepared, in conformity with the
Securities Act, and has filed the Registration Statement on Form S-3
which has become effective for the registration of up to $200,000,000
aggregate issue price of securities including the Securities. The
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) under the Securities Act
and complies in all material respects with such Rule. 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 under the Securities Act a supplement to the form of prospectus
included in such registration statement related to the Securities and
the plan of distribution of the Securities. Copies of the Registration
Statement, including any amendments thereto, each related preliminary
prospectus (meeting the requirements of the Securities) contained
therein, the exhibits, financial statements and schedules have
heretofore been delivered by the Company to you;
(b) the Registration Statement has been declared effective by
the Commission under the Securities Act; 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; and the
Registration Statement and Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto)
comply, or will comply, as the case may be, in all material respects
with
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the Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively,
the "TRUST INDENTURE ACT"), and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any 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, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
(c) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(d) the Company has full right and corporate power and
authority to enter into this Agreement and the Indenture and to perform
the transactions contemplated hereby and thereby. The filing of the
Registration Statement and the execution and delivery of this Agreement
and the Indenture have been duly authorized by the Board of Directors
of the Company. This Agreement and the Indenture each constitute a
valid
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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 and the Indenture 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 Securities
by the Company and the performance of this Agreement and the Indenture
by the Company and the consummation of the transactions herein and
therein contemplated will not result in a violation of the Company's
articles of incorporation or bylaws or result in a breach or violation
of the Company's articles 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 Subsidiary entities identified on Schedule III hereto
(the "SUBSIDIARIES") under, any statute which is applicable to it, or
under any indenture, mortgage, deed or trust, note, loan agreement,
sale and leaseback arrangement or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which
they are bound or to which any of the properties or assets of the
Company or the Subsidiaries is subject, or any order, rule or
regulation applicable to the Company or any of the Subsidiaries of any
court or public, regulatory or governmental agency or body having
jurisdiction over the Company or the 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 the 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 have been obtained
under the Securities Act, the Trust Indenture Act and as may be
required by the National Association of Securities Dealer, Inc. (the
"NASD") or any state securities laws;
(e) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated Subsidiaries as of the dates indicated
and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles
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applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly
the information required to be stated therein;
(f) except as described in the Prospectus, neither the Company
nor any of the 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 the Subsidiaries taken as a
whole. Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company and the 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 the 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 the Subsidiaries taken as a whole. The Company and the
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 the Subsidiaries in
good faith. All tax liabilities, including those being contested by the
Company or the Subsidiaries, are adequately provided for on the books
of the Company and the Subsidiaries except to such extent as would not
materially adversely affect the business of the Company and the
Subsidiaries taken as a whole. The Company and the Subsidiaries have
made all required 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 the
Subsidiaries taken as a whole. The Company and the Subsidiaries have no
knowledge of any tax proceeding or action pending or threatened against
the Company or the Subsidiaries which could materially adversely affect
their business or property taken as a whole;
(g) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each
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other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole;
(h) each of the Company's Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole; and all the outstanding shares of capital stock of each
Subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable, and (except in the case of foreign
Subsidiaries, for directors' qualifying shares) are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(j) the Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
binding obligations of the Company entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized and upon
effectiveness of the Registration Statement will have been duly
qualified under the Trust Indenture Act and, when executed and
delivered by the Company and the Trustee, the Indenture will constitute
a valid and binding instrument; and the Securities and the Indenture
will conform to the descriptions thereof in the Prospectus in all
material respects;
(k) neither the Company nor any of its Subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of
or in default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its Subsidiaries is a
party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and
its Subsidiaries taken as a whole; the issue and sale of the Securities
and the performance by the Company of all its
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obligations under the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
license, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act, the
Trust Indenture Act and as may be required under state securities or
Blue Sky Laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(l) the Company and the Subsidiaries have good and marketable
title to all real property or interests in real property described in
the Prospectus under the caption "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 the
Subsidiaries; the Company and the Subsidiaries have obtained
satisfactory confirmation (consisting of policies of title insurance of
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 the Subsidiaries have the
foregoing title to such real property and interests in real property,
and (B) that the instruments securing the Company's and the
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 the Subsidiaries considered as one
enterprise; and all leases to which the Company or the Subsidiaries is
a lessee relating to real property are valid and binding agreements of
the Company or the Subsidiaries and no default exists or is continuing
thereunder, and the Company or the
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Subsidiary enjoys peaceful and undisturbed possession under all such
leases to which it is a party as lessee;
(m) the Company has been organized in conformity with the
requirements for qualification, and with respect to all tax periods
regarding which the Internal Revenue Service is or will be entitled to
assert any claim, assessment or adjustment, has operated 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;
(n) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries or any of
their respective properties or to which the Company or any of its
Subsidiaries is or may be a party or to which any property of the
Company or any of its Subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its Subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a material adverse effect on the general affairs, business,
prospects, management, financial position or results of operations of
the Company and its Subsidiaries taken as a whole; and there are no
contracts or other documents that are required to be filed as an
exhibit to the Registration Statement which are not filed; the
contracts and documents to which the Company or any of the 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 the Subsidiaries nor, to the best knowledge of the Company, any
other party is in breach of or default under any of such contracts;
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 the Subsidiaries taken as
a whole;
(o) The Company has duly and validly authorized capital stock
as described in the Prospectus;
(p) immediately after any sale of Securities by the Company
hereunder, the aggregate amount of Securities which have been issued
and sold by the Company hereunder and of any securities of the Company
(other than the Securities) that shall have been issued and sold
pursuant to
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the Registration Statement will not exceed the amount of securities
registered under the Registration Statement;
(q) Ernst & Young, LLP who have certified certain financial
statements of the Company and its Subsidiaries filed with the
Commission as part of the Registration Statement, some of which are
included in the Prospectus, are independent public accountants as
required by the Securities Act;
(r) no relationship, direct or indirect, exists between or
among the Company or any or its Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its Subsidiaries on the other hand, which is required
by the Securities Act to be described in the Registration Statement and
the Prospectus which is not so described;
(s) the Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT");
(t) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to
doing business with the Government of Cuba or with any person or
affiliate located in Cuba;
(u) the Company and its Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and, except as
disclosed in the Registration Statement and the Prospectus, there is no
tax deficiency which has been or to the knowledge of the Company, might
reasonably be expected to be asserted or threatened against the Company
or any Subsidiary which would have a material adverse effect on the
Company and its Subsidiaries.
(v) each of the Company and its Subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its
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business as conducted as of the date hereof, except such licenses,
permits, certificates, consents, orders, approvals, authorizations,
declarations and filings, the absence of which, in the aggregate, could
not reasonably be expected to have a material adverse effect on the
Company and its Subsidiaries, and neither the Company nor any such
Subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as described in
the Registration Statement and the Prospectus and except such licenses,
permits, certificates, consents, orders, approvals and authorizations,
the modification or revocation of which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the Company
and its Subsidiaries; and each of the Company and its Subsidiaries is
in compliance with all laws and regulations relating to the conduct of
its business as conducted as of the date hereof except for violations
which, in the aggregate, could not reasonably be expected to have a
material adverse effect on the Company and its Subsidiaries;
(w) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or
any of its Subsidiaries which are likely to have a material adverse
effect on the Company and its Subsidiaries taken as a whole;
(x) neither the Company nor any of the Subsidiaries 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 the Subsidiaries
taken as a whole;
(y) neither the Company, any of the 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 Exchange Act, and
neither the Company, any of the 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 the Subsidiaries
taken as a whole;
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(z) except as described in the Prospectus, the Company and the
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 of the Subsidiaries has 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 the 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 the Subsidiaries taken as a whole;
(aa) 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 the Subsidiaries
(or to the best knowledge of the Company, any of their predecessors in
interest or any lessees 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 the 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 the Subsidiaries taken as a whole; (ii) there has been no material
spill, discharge, leak, emission, injection, escape, dumping or release
of any kind into such property or into the environment surrounding such
property by the Company, any of the 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 release, any material adverse change in the
financial condition, results of operation, business or properties of
the
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Company and the Subsidiaries taken as a whole, and (iii) the Company
has complied with the disclosure requirements under the Securities Act
and the Exchange Act with respect to environmental matters. 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;
(bb) with respect to the properties described in the Prospectus
or reflected in the Company's consolidated financial statements
included or incorporated by reference therein, the Company and the
Subsidiaries (i) are in compliance with any and all applicable foreign,
Federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have obtained all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any permit, license, approval, except where such
noncompliance or failure to obtain or comply with the terms and
conditions of such Environmental Laws, permits, licenses or approvals
are otherwise disclosed in the Prospectus or would not, singly, or in
the aggregate, have a material adverse effect on the condition
(financial or other), business affairs or prospects, earnings, net
worth or results of operations of the Company and the Subsidiaries
taken as a whole;
(cc) the Company and each of the 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.
5. The Company covenants and agrees with each of the several Under
writers as follows:
(a) to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in Section 5(e)
below, to furnish
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each of the Underwriters as many copies of the Prospectus (including
all amendments and supplements thereto) and documents incorporated by
reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise you promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the receipt
by the Company of any notification with respect to any suspension of
the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented
will not,
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in the light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply
with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in effect
so long as reasonably required for distribution of the Securities and
to pay all fees and expenses (including fees and disbursements of
counsel to the Underwriters) reasonably incurred in connection with
such qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate; provided that the Company shall not
be required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to
you as soon as practicable but not later than 15 months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act) an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement;
(h) so long as the Securities are outstanding, to furnish to
you copies of all reports or other communications (financial or other)
furnished to holders of Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are substantially
similar to the Securities;
(j) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance,
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execution, authentication and delivery of the Securities, including
any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under
the laws of such jurisdictions as the Underwriters may designate
(including fees of counsel for the Underwriters and their
disbursements), (iv) in connection with the listing of the Securities
on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and
shipping, as herein provided, (vii) payable to rating agencies in
connection with the rating of the Securities, and (viii) the cost and
charges of any transfer agent. It is understood, however, that except
as provided in this Section and in Sections 7 and 10, the Underwriters
shall pay all their own costs and expenses, including the fees of
their own counsel, stock transfer taxes due upon resale of any of the
Securities by them and any advertising expenses incurred in connection
with any offers they may make.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on
and as of the Closing Date and the Company shall have complied in all
material respects with all agreements and all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or to the Company's knowledge threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
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downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the capital
stock or long-term debt of the Company or any of its Subsidiaries or
any material adverse change, or any development involving a material
adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus; and neither the Company nor any of its Subsidiaries
has sustained since the date of the latest audited financial statements
included or incorporated by reference 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, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company,
with specific knowledge about the Company's financial matters,
satisfactory to you to the effect set forth in Sections 6(a), 6(b) and
6(c) (with respect to the respective representations, warranties,
agreements and conditions of the Company) and to the further effect
that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company and its Subsidiaries taken as a whole from that set forth
or contemplated in the Registration Statement.
(f) On the Closing Date you shall have received the opinion of
Argue Pearson Harbison & Myers, LLP, counsel for the Company addressed
to you and dated the Closing Date, in form and substance satisfactory
to you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
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its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be
so qualified or in good standing would not have a material
adverse effect on the Company and its Subsidiaries taken as a
whole;
(iii) each of the Company's Subsidiaries has been duly
incorporated and is validly existing as a corporation under the
laws of its jurisdiction of incorporation with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than
where the failure to be so qualified and in good standing would
not have a material adverse effect on the Company and its
Subsidiaries taken as a whole; and based solely on our review of
the articles or certificate of incorporation, bylaws, corporate
minutes and such other documents of the Subsidiaries all of the
issued shares of capital stock of each Subsidiary have been duly
and validly authorized and issued, are fully paid and
non-assessable, and (except in the case of foreign Subsidiaries,
for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iv) the Company's authorized capital stock is as set
forth under the heading "Capitalization" in the Prospectus;
(v) such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective
under the Securities Act and, to the best knowledge of such
counsel, 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 Securities Act; any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) under the
Securities
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Act has been made in the manner and within the time period
required by such Rule 424(b);
(vi) 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 Form S-3 under the Securities
Act (except that such counsel need express no opinion or belief
as to numerical, financial and statistical data, financial
statements and notes and related schedules thereto). With
respect to the documents incorporated by reference in the
Prospectus, although such counsel may not have represented the
Company at the time such documents were prepared and filed with
the Commission and did not review or examine such documents
prior to the time such documents were filed with the Commission,
such counsel has no reason to believe, without any independent
investigation or inquiry on the part of such counsel whatsoever,
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 Exchange Act
(except that such counsel need express no opinion or belief as
to numerical financial and statistical data, financial
statements and notes and related schedules thereto);
(vii) the descriptions in the Registration Statement and
Prospectus of contracts and other documents filed as exhibits to
the Registration Statement are accurate in all material
respects;
(viii) the Indenture has been duly qualified under the Trust
Indenture Act; 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 or the Indenture, except such as may be
required under the Securities Act, the Exchange Act or the Trust
Indenture Act or by the NASD or under state laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(ix) the Company has the corporate power and authority to
enter into this Agreement and to sell and deliver the Securities
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
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the Company, and is 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,
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 and the Indenture by the Company
and the consummation of the transactions herein and therein
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 the 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 the Subsidiaries is a party or by which they
are bound or to which any of the properties or assets of the
Company or the 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 the 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
the Subsidiaries taken as a whole;
(x) to the best knowledge of such counsel, (A) there are
no (individually or in the aggregate) legal, governmental or
regulatory proceedings pending or threatened to which the
Company or any of the Subsidiaries is a party or of which the
business or properties of the Company or any of the Subsidiaries
is the subject which would have a material adverse effect on the
business or property of the Company and the 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
contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which are not
described
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therein or filed as required; (C) neither the Company nor any of
the 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 the 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 or the Exchange Act which are not described therein as
required;
(xi) 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 taxable years ended December 31, 1993 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 REIT under the Code; actual qualification of the Company as
a REIT, however, will depend upon the Company's continued
ability to meet, and its meting, through actual annual operating
results and distributions, the various tests imposed under the
Code;
(xii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation of the other transactions
contemplated by this Agreement or the Indenture, except such
consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriter;
(xiii) such counsel (A) is of the opinion that the
Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statements
included therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and (B) believes that (except for the financial statements
included therein as to which such counsel need express no
belief) the Registration Statement and the Prospectus, on the
date of this Agreement, did not contain any untrue statement of
a material fact or omit to state a material
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fact required to be stated therein or necessary to make the
statements therein not misleading, and that the Prospectus as
amended or supplemented, if applicable, does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(xiv) such counsel is of the opinion ascribed to it in the
Prospectus under the caption "Certain Federal Income Tax
Considerations";
(xv) to the best knowledge of such counsel, each of the
Company and its Subsidiaries owns, possesses or has obtained all
licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as
the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, and to the best
knowledge of such counsel, neither the Company nor any such
Subsidiary has received any actual notice of any proceeding
relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement
and the Prospectus except in the case of any such license,
permit, certificate, consent, order, approval or other
authorization, the loss of which or failure to maintain would
not have a material adverse effect on the Company or its
Subsidiaries taken as a whole; and to the best knowledge of such
counsel, each of the Company and its Subsidiaries is in
compliance with all laws and regulations relating to the conduct
of its business as conducted as of the date of the Prospectus;
and
(xvi) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act.
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
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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 as of its date
(other than numerical, 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
at the time it became effective (other than numerical, 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 which
opinion must be reasonably satisfactory to the Representatives and to Davis Polk
& Wardwell, counsel for the Underwriters, 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 and the Underwriters are not justified in relying
upon such certificates, statements, representations and warranties.
The opinion of Argue Pearson Harbison & Myers, LLP described
above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(g) On the Closing Date you shall have received the opinion of
Willkie Farr & Gallagher, counsel for the Company addressed to you and
dated the Closing Date, in form and substance satisfactory to you, to
the effect that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
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instrument of the Company enforceable in accordance with its
terms, except that the enforceability thereof may be limited by
or subject to (a) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws now or
hereafter existing which effect the rights and remedies of
creditors generally, and (b) equitable principles of general
applicability; and the Indenture has been duly qualified under
the Trust Indenture Act. The Indenture conforms in all material
respects to the descriptions thereof contained in the
Prospectus;
(ii) the Securities have been duly authorized, executed
and delivered by the Company and, when duly authenticated in
accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of
this Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits provided by the Indenture
and the Securities will be enforceable against the Company in
accordance with their terms, except as the enforceability
thereof may be limited to bankruptcy, insolvency,
reorganization, fraudulent, conveyance, moratorium and other
laws affecting creditors' rights generally and by general
principals of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law. The terms of
the Securities conform in all material respects to all
statements and descriptions related thereto in the Prospectus;
(iii) The statements in the Prospectus under "Description
of the Notes" and "Underwriting" insofar as such statements
describe matters of law or legal conclusions, have been reviewed
by such counsel and are correct in all material respects.
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 New York and may
rely as to Maryland law on the opinion of Venable, Baetjer and Howard, LLP which
opinion must be reasonably satisfactory to the Representatives and to Davis Polk
& Wardwell, counsel for the Underwriters, 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 and the Underwriters are not justified in relying
upon such certificates, statements, representations and warranties.
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(h) on the date hereof and on the Closing Date, Ernst & Young
LLP shall have furnished to you letters, dated such date, in form and
substance satisfactory to you, containing statements and information of
the type customarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus;
(i) you shall have received on and as of the Closing Date an
opinion of Davis Polk & Wardwell, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are
reasonably satisfactory to the Representatives and to Davis Polk & Wardwell,
counsel for the Underwriters.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein;
provided, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities if such untrue
statement or omission or alleged
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untrue statement or omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements hereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented) shall not have been
furnished to such person at or prior to the written confirmation of the sale of
such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "INDEMNIFIED PERSON") shall promptly
notify the person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
first of the named Representatives on Schedule I hereto and any such separate
firm for the Company, its directors, its officers who sign the Registration
Statement and such
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control persons of the Company or authorized representatives shall be designated
in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by 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 contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount
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paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of the
Securities set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law of in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Designated
Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) there shall have occurred, since the respective dates as of
which information is given in the Registration Statement and the Prospectus, any
material adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of the
Company or the earnings, business affairs, properties, management or business
prospects of the Company, whether or not arising in the ordinary course of
business, (ii) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (iii) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iv) a
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general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, (v) there has occurred
any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Exchange Act), (vi) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Designated Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-tenth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or
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any condition of the Underwriters' obligations cannot be fulfilled, the Company
agrees to reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
II hereto. Notices to the Company shall be given to it at Omega Healthcare
Investors, Inc., 905 West Eisenhower Circle, Suite 110, Ann Arbor, MI 48103,
Attention: President, facsimile number (734) 996-0020.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
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14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
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Very truly yours,
OMEGA HEALTHCARE INVESTORS,
INC.
By:/s/ DAVID A. STOVER
--------------------------------
Name: David A. Stover
Title: Vice President
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Accepted: June 5, 1998
JP Morgan Securities Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation
Acting severally on behalf of themselves
and the several Underwriters listed
in Schedule II hereto.
By: JP Morgan Securities Inc.
By: /s/ ROBERT POST
-------------------------------
Name: Robert Post
Title: Managing Director
34
SCHEDULE I
Representatives: J.P. Morgan Securities Inc. and Donaldson,
Lufkin & Jenrette Securities Corporation.
------------------------------------------
Underwriting Agreement dated: June 5, 1998
------------------------------------------
Registration Statement No.: 333-34763
------------------------------------------
Title of Securities: 6.95% Notes due 2002
------------------------------------------
Aggregate principal amount: $125,000,000
------------------------------------------
Price to Public: 99.688% of the principal amount of the
Securities, plus accrued interest, if any,
from to the Closing Date.
Indenture: Indenture dated as of August 27, 1997
between the Company and NBD Bank as
Trustee, as supplemented by the
Supplemental Indenture dated as of June 1,
2002.
Stated Maturity Date: June 15, 2002
------------------------------------------
Interest Rate: 6.95%
------------------------------------------
Interest Payment Dates: June 15 and December 15
------------------------------------------
Redemption: The Notes are not redeemable prior to
maturity.
------------------------------------------
Other Provisions: As set forth in the Prospectus.
------------------------------------------
Closing Date and Time of Delivery: The Closing will be held at 9:00 a.m.
(E.S.T.) on June 10, 1998, with the
Securities being delivered through the
book-entry facilities of the Depository
Trust Company ("DTC") and made
available for checking by DTC and the
Trustee at least 24 hours prior to the
Closing Date.
------------------------------------------
Closing Location: Willkie Farr & Gallagher
787 7th Avenue
New York, NY 10019
------------------------------------------
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Address for Notices to Underwriters: J.P. Morgan & Co. Inc.
60 Wall Street
New York, NY 10260
------------------------------------------
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SCHEDULE II
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWIRTER PURCHASED
----------- ----------------
J.P. Morgan Securities Inc............................. 93,750,000
Donaldson, Lufkin & Jenrette
Securities Corporation........................ 31,250,000
Total......................................... $125,000,000
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SCHEDULE III
LIST OF SUBSIDIARIES
Omega Healthcare Investors, Inc.
NAMES JURISDICTION OF INCORPORATION
- ----- -----------------------------
Bayside Street, Inc. Maryland
OHI (Kansas), Inc. Kansas
OHI (Illinois), Inc. Illinois
OHI (Florida), Inc. Florida
OHI (Clemmons), Inc. North Carolina
OHI (Greensboro), Inc. North Carolina
Sterling Acquisition Corp. Kentucky
Sterling Acquisition Corp. II Kentucky
OS Leasing Kentucky
Delta Investors I, L.L.C. Maryland
Delta Investors II, L.L.C. Maryland
Jefferson Clark, Inc. Maryland
2