EXHIBIT 1.2
2,500,000 Common Shares
($.01 Par Value)
UNDERWRITING AGREEMENT
February 18, 1998
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, Health and Retirement Properties Trust, a Maryland
real estate investment trust (the "Company"), hereby confirms its agreement with
you (the "Underwriter") as follows:
1. Description of Shares. The Company proposes to issue and sell to you
2,500,000 common shares of beneficial interest, par value $.01 per share (the
"Shares"). The Shares are more fully described in the Prospectus hereinafter
defined.
2. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to you, and
you agree to purchase from the Company at a purchase price of $19.00 per share,
2,500,000 Shares.
The Company will deliver definitive certificates for the Shares at the
office of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
("▇▇▇▇▇▇▇' Office"), or such other place as you and the Company may mutually
agree upon (the "Place of Closing"), for your account against payment to the
Company of the purchase price for the Shares sold to you by wire transfer of
immediately available funds, at 10:00 a.m., St. Louis time, on February 23,
1998, or at such other time and date not later than three full business days
thereafter as you and the Company may agree, such time and date of payment and
delivery being herein called the "Closing Date."
The certificates for the Shares so to be delivered will be made
available to you for inspection at ▇▇▇▇▇▇▇' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least two full business days prior to the Closing Date.
3. Representations, Warranties and Agreements of the Company.
(a) The Company represents and warrants to and agrees with you that:
(i) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"); a
registration statement (Registration No. 333-26887) on Form S-3,
including a prospectus relating to the registration of the
Shares and such other securities which may be offered from time to time
in accordance with Rule 415 under the Act, and such amendments to such
registration statement as may have been required to the date of this
Agreement, has been prepared by the Company pursuant to and in
conformity in all material respects with the requirements of the Act,
and the Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, was
filed with the Commission under the Act, and was declared effective on
May 30, 1997. Copies of such registration statement, including any
amendments thereto, each related preliminary prospectus contained
therein, the exhibits, financial statements and schedules have
heretofore been delivered by the Company to you. A prospectus
supplement (the "Prospectus Supplement") setting forth the terms of the
offering, sale and plan of distribution of the Shares and additional
information concerning the Company and its business has been or will be
prepared and will be filed pursuant to Rule 424(b) of the Rules and
Regulations on or before the second business day after the date hereof
(or such earlier time as may be required by the Rules and Regulations).
The term "Registration Statement" as used herein means the registration
statement, and the basic prospectus included therein, as amended at the
time it or any amendment thereto became effective under the Act (the
"Effective Date"), including financial statements and all exhibits and
all documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act. Any document filed by the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") after
the effective date of the Registration Statement or the date of the
Prospectus Supplement and incorporated by reference in the Prospectus
as defined below shall be deemed to be included in the Registration
Statement and the Prospectus as of the date of such filing. The term
"Prospectus" as used herein means (i) the basic prospectus included in
the Registration Statement at the Effective Date, as supplemented by
the Prospectus Supplement as first filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations, except that, if such basic
prospectus is amended or supplemented subsequent to the Effective Date,
the term "Prospectus" shall refer to the basic prospectus as so amended
or supplemented and as further supplemented by the Prospectus
Supplement, or (ii) if no such filing is required, the form of final
prospectus included in the Registration Statement at the Effective Date
and the last Preliminary Prospectus filed with the Commission prior to
the time the Registration Statement became effective, taken together
(including, in each case, the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act). The term
"Preliminary Prospectus" as used herein shall mean a preliminary
prospectus included at any time in the Registration Statement.
(ii) The Commission has not issued, and is not, to the
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 at the Effective Date,
and the Prospectus at its date of issue 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
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thereto, as of the applicable effective date, and neither the
Prospectus nor any supplement thereto, as of its applicable issue date
or the Closing 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted
from the Registration Statement or the Prospectus, or any such
amendment or supplement, in reliance upon, and conforming with, written
information furnished to the Company by you specifically for use in the
preparation thereof.
(iii) The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time
they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act, and the rules and
regulations adopted by the Commission thereunder (the "1934 Act Rules
and Regulations"), and, when read together and with the other
information 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 necessary to
make the statements therein in light of the circumstances in which they
were made not misleading.
(iv) The filing of the Registration Statement and the
execution and delivery of this Agreement have been duly authorized by
the Board of Trustees 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 and contribution provisions of Section 6 hereof may
be limited by public policy considerations as expressed in the Act as
construed by courts of competent jurisdiction, and except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights
generally and by general principles of equity); the issue and sale of
the Shares by the Company and the performance of this Agreement and the
consummation of the transactions herein contemplated will not result in
a violation of the Company's Amended and Restated Declaration of Trust
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, 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 of any court
or governmental agency or body having jurisdiction over the Company or
its subsidiaries or their properties, except to such extent as 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
governmental agency or body is required for the consummation of the
transactions herein contemplated, except such as may be required by
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the National Association of Securities Dealers, Inc. (the "NASD"), the
New York Stock Exchange or under the Act or Rules and Regulations or
any state securities laws.
(v) 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. 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 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 condition (financial or other), net
worth, business, affairs, management, prospects or results of
operations of the Company and its subsidiaries taken as a whole. The
Company and its subsidiaries have filed all material federal, state and
foreign income and franchise tax returns and paid all material taxes
shown as due thereon; all tax liabilities 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, operations,
affairs, properties, prospects, profits or condition (financial or
other) or income 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; and the Company and its subsidiaries have no knowledge of
any tax proceeding or action pending or threatened against the Company
or its subsidiaries which might materially adversely affect their
business or property.
(vi) Except as described in the Prospectus, there is not now
pending or, to the knowledge of the Company, threatened, any action,
suit or proceeding to which the Company or its subsidiaries is a party
before or by any court or public, regulatory or governmental agency or
body which might be expected to result (individually or in the
aggregate) in any material adverse change in the business, operations,
affairs, properties, prospects, profits or condition (financial or
other) or income of the Company and its subsidiaries taken as a whole,
or might be expected to materially and adversely affect (individually
or in the aggregate) the properties or assets thereof, and there are no
contracts or documents of the Company or its subsidiaries 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.
(vii) The Company has duly and validly authorized Shares as
described in the Prospectus; all outstanding Shares of the Company and
the Shares conform, or when issued will conform, to the description
thereof in the Prospectus and have been, or, when issued and paid for
will be, duly authorized, validly issued, fully paid and nonassessable;
and the
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issuance of the Shares to be purchased from the Company hereunder is
not subject to preemptive rights.
(viii) Each of the Company and its subsidiaries have been
duly incorporated or formed, as the case may be, and is a validly
existing corporation, general or limited partnership, or other legal
entity, as the case may be, in good standing under the laws of the
state or other jurisdiction in which it is incorporated or formed, as
the case may be. The Company and its subsidiaries have full power and
authority (corporate and other) to own, lease and operate their
properties and conduct their businesses as described in the Prospectus;
each of the Company and its subsidiaries is duly qualified or
registered to do business and is in good standing in each state or
other jurisdiction in which its 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 to conduct its or
their business as described in the Prospectus; and the outstanding
shares of capital stock or ownership interests 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 and
are not except as disclosed in the Prospectus the subject of any
agreement or understanding with any person.
(ix) The accounting firms which have certified the
financial statements filed with or incorporated by reference in and as
a part of the Registration Statement are independent public accounting
firms within the meaning of the Act and the Rules and Regulations.
(x) The consolidated financial statements of the Company
together with the related schedules and notes thereto, set forth or
included or incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Company and
its consolidated subsidiaries as of the dates indicated and the results
of operations, changes in financial position, shareholders' equity and
cash flows for the periods therein specified, in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein).
The summary and selected financial and statistical data included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and, to the
extent based upon or derived from the financial statements, have been
compiled on a basis consistent with the financial statements presented
therein. In addition, the pro forma financial statements of the
Company, and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the basis
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
Furthermore, all financial statements required by Rule 3-14 of
Regulation S-X ("Rule 3-14") have been included or incorporated by
reference in
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the Registration Statement and the Prospectus and any such financial
statements are in conformity with the requirements of Rule 3-14. No
other financial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the
Prospectus under the Act or the Rules and Regulations thereunder.
(xi) 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
individually or in the aggregate are not materially adverse to the
business, operations, affairs, properties, prospects, profits or
condition (financial or other), or income of the Company and its
subsidiaries taken as a whole.
(xii) Neither the Company nor any subsidiary is in
violation of any other laws, ordinances or governmental rules or
regulations to which it is subject, including, without limitation,
Section 13 of the Exchange Act, except for any such violations that
would not, individually or in the aggregate, have a material adverse
effect on the business, operations, affairs, properties, prospects,
profits or condition (financial or other) or income of the Company and
its subsidiaries taken as a whole, and neither the Company nor any
subsidiary has failed to obtain any license, permit, franchise,
easement, consent, or other governmental authorization necessary to the
ownership, leasing and operation of its properties or to the conduct of
its business, which violation or failure would materially adversely
affect the business, operations, affairs, properties, prospects,
profits or condition (financial or other) or income of the Company and
its subsidiaries taken as a whole. Neither the Company nor any
subsidiary has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political office, or
failed fully to disclose any contribution in violation of law, or (B)
made any payment to any state, federal or foreign government official,
or other person charged with similar public or quasi-public duty (other
than payment required or permitted by applicable law).
(xiii) Except as disclosed in the Prospectus, there are no
holders of securities of the Company having rights to registration
thereof or preemptive rights to purchase Shares of the Company. Holders
of registration rights have waived such rights with respect to the
offering being made by the Prospectus.
(xiv) Except as described in the Prospectus, the Company
and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent licenses, trademarks, service marks and
trade names necessary to conduct the business now operated by them, and
neither the Company nor any subsidiary has received any notice of
infringement of or conflict with asserted rights of others with respect
to any patents, patent licenses, trademarks, service marks or trade
names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the conduct of the business, operations, affairs, properties,
prospects, profits or condition (financial or other) or income of the
Company and its subsidiaries taken as a whole.
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(xv) The Company and each of its subsidiaries has good
and marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (i) are described in the
Prospectus or (ii) are not material to the business of the Company or
its subsidiaries, taken as a whole. The Company and each of its
subsidiaries has valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by it, with such
exceptions as are not material and do not materially interfere with the
use made and proposed to be made of such properties by the Company and
such subsidiaries; the use and occupancy of each of the properties of
the Company complies in all respects with all applicable codes and
zoning laws and regulations, except such noncompliance as would not
have a material adverse effect on the conduct of the business,
operations, affairs, properties, prospects, profits or condition
(financial or other) or income of the Company and its subsidiaries
taken as a whole; the Company has no knowledge of any pending or
threatened condemnation or zoning change that will in any material
respect affect the size of, use of, improvements of, construction on,
or access to any of the properties of the Company; and the Company has
no knowledge of any pending or threatened proceeding or action that
will in any manner affect the size of, use of, improvements on,
construction on, or access to any of the properties of the Company.
(xvi) Title insurance in favor of the Company (or the
subsidiary which holds title to such property) is maintained with
respect to each of the properties owned by the Company in an amount at
least equal to the greater of (i) the cost of acquisition of such
property or (ii) the cost of construction by the Company of the
improvements located on such property (measured at the time of such
construction), except, in each case, where the failure to maintain such
title insurance would not materially adversely affect the business,
operations, affairs, properties, prospects, profits or condition
(financial or other) or income of the Company and its subsidiaries
taken as a whole. Title insurance in favor of the mortgagee is
maintained in an amount equal to the maximum commitment of the related
loan.
(xvii) (a) Except as disclosed in the Prospectus, the
Company has no knowledge of (a) the presence of any hazardous
substances, hazardous materials, toxic substances, pollutants or waste
materials (collectively, "Hazardous Materials") on any of its
properties, except that which is in compliance with all Environmental
Laws, or (b) any spills, releases, discharges or disposals of Hazardous
Materials that have occurred or are presently occurring on or from its
properties, which presence or occurrence would individually or in the
aggregate have a material adverse effect on the conduct of the
business, operations, affairs, properties, profits or condition
(financial or other) or income of the Company and its subsidiaries
taken as a whole.
(b) Except as disclosed in the Prospectus, the Company,
its subsidiaries and its properties (i) are in compliance with any and
all Environmental Laws, (ii) have received all permits, licenses or
other approvals required under applicable Environmental Laws to conduct
their businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws,
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failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not individually or in the aggregate have a
material adverse effect on the conduct of the business, operations,
affairs, properties, profits or condition (financial or other) or
income of the Company and its subsidiaries taken as a whole.
(c) The Company engages environmental consultants to
perform phase I environmental site assessments in substantial
accordance with the applicable ASTM Standard to identify any
environmental conditions prior to the purchase of its properties. On
the basis of such phase I environmental site assessments, or such
additional investigations as may have been performed based on the
findings of a phase I assessment, and, except as described in the
Prospectus, the Company and its subsidiaries have reasonably concluded
that no such environmental conditions have been identified which would,
individually or in the aggregate, have a material adverse effect on the
conduct of the business, operations, affairs, properties, profits or
condition (financial or other) or income of the Company and its
subsidiaries taken as a whole.
(d) As used herein, "Hazardous Material" shall include,
without limitation any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances,
or related materials, asbestos, polychlorinated biphenyls ("PCBs"),
petroleum products and by-products and substances defined or listed as
"hazardous substances," "toxic substances," "hazardous waste," or
"hazardous materials" in any Federal, state or local Environmental Law.
(e) As used herein, "Environmental Law" shall mean all
laws, regulations or ordinances of any Federal, state or local
governmental authority having or claiming jurisdiction over any of the
Company's properties (a "Governmental Authority") that are designed to
protect public health and the environment or regulate the handling of
Hazardous Materials, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Hazardous
Material Transportation Act, as amended (49 U.S.C. Section 1801 et
seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act,
as amended (33 U.S.C. Section 1251 et seq.), and the Clean Air Act, as
amended (42 U.S.C. Section 7401 et seq.), and any and all analogous
future federal or present or future state or local laws.
(xviii) To the knowledge of the Company, no labor disturbance
exists with the employees of the Company or its subsidiaries or is
imminent which would have a material adverse effect on the business,
operations, affairs, properties, profits or condition (financial or
other) or income of 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 result in stabilization
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or manipulation of the price of the Shares, 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" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xxi) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not convertible
nor does the Company hold a participating interest therein.
(xxii) Property and casualty insurance in favor of the Company
is maintained with respect to each of the properties owned by it in an
amount and on such terms as is reasonable and customary for businesses
of this type.
(xxiii) The Company has continuously been organized and
operated in conformity with the requirements for qualification as a
real estate investment trust under the Internal Revenue Code of 1986,
as amended (the "Code") for all taxable years commencing with its
taxable year ended December 31, 1987. The Company has filed an election
to be taxed as a real estate investment trust for all subsequent
taxable years, and no such election has been terminated. The Company's
method of operation will permit it to continue to meet the requirements
for taxation as a real estate investment trust under the Code. The
Company intends to continue to operate in a manner which would permit
it to qualify as a real estate investment trust under the Code.
(xxiv) Except as disclosed in the Prospectus, each entity
identified in the Prospectus as a tenant of any property, or a
subtenant thereof, has entered into a lease or a sublease, if
applicable, for the possession of such property; except as disclosed in
the Prospectus, each such lease is in full force and effect and neither
the Company nor any of its subsidiaries has notice of any defense to
the obligations of the tenant thereunder or any claim asserted or
threatened by any person or entity, which claim, if sustained, would
have a material adverse effect on the conduct of the business,
operations, affairs, properties, profits or condition (financial or
other) or income of the Company and its subsidiaries taken as a whole;
and except as disclosed in the Prospectus, the lessor under each such
lease has complied with its obligations under such lease in all
material respects and neither the Company nor any of its subsidiaries
has received notice of any default by the tenant under such lease
which, individually or in the aggregate with other such defaults, would
have a material adverse effect on the conduct of the business,
operations, affairs, properties, profits or condition (financial or
other) or income of the Company and its subsidiaries taken as a whole.
(xxv) Any certificate signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation
and warranty by the Company to you as to the matters covered thereby.
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(xxvi) A registration statement relating to the Shares of the
Company has been declared effective by the Commission pursuant to the
Exchange Act and the Shares of the Company is duly registered
thereunder. The Shares have been listed on the New York Stock Exchange,
subject to notice of issuance or sale of the Shares, as the case may
be.
4. Additional Covenants. The Company covenants and agrees with
you that:
(a) The Company will (i) prepare a Prospectus Supplement
setting forth the number of Shares covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the Shares are
being issued, the name of the Underwriter and the number of Shares
which the Underwriter has agreed to purchase, the price at which the
Shares are to be purchased by the Underwriter from the Company and such
other information as the Underwriter and the Company deem appropriate
in connection with the offering of the Shares, and file the Prospectus
in a form approved by you pursuant to Rule 424(b) under the Act no
later than the Commission's close of business on the second business
day following the date of the determination of the offering price of
the Shares; (ii) not file any amendment to the Registration Statement
or supplement to the Prospectus of which you shall not previously have
been advised and furnished with a copy or to which you shall have
reasonably objected in writing or which is not in compliance with the
Rules and Regulations; and (iii) promptly notify you after it shall
have received notice thereof of the time when any amendment to the
Registration Statement becomes effective or when any supplement to the
Prospectus has been filed.
(b) The Company will advise you promptly, after it shall
receive notice or obtain knowledge thereof, 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 threatening 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 you and your counsel
in endeavoring to qualify the Shares for sale under 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 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 required to continue
such qualifications in effect for so long a period as you may
reasonably request.
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(d) The Company will deliver to you, 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 you may from time to time reasonably request. The Company consents
to the use of such Prospectus by you, both in connection with the
offering or sale of the Shares and for such other purposes and for such
period of time thereafter as the Prospectus is required by law to be
delivered in connection with the offering or sale of the Shares. The
Company will deliver to you at or before the Closing Date two conformed
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 you such number of copies of the Registration
Statement, without exhibits, and of all amendments thereto, as you may
reasonably request.
(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 judgment of the Company or in
your judgment or in the opinion of your counsel, 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
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 not later than the
first day of the Company's fiscal quarter next following 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 you 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 you at your 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 pursuant to the requirements of such exchange
or with the Commission pursuant to the Act or the Exchange Act. The
Company will deliver to you 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 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.
-11-
(h) The Company will apply the proceeds from the sale of
the Shares as set forth in the description under "Use of Proceeds" in
the Prospectus, which description complies in all respects with the
requirements of Item 504 of Regulation S-K.
(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 the Closing Date, the Company will not
issue any press releases or other communications directly or indirectly
and will hold no press conference, 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
consent.
(l) The Company will use its best efforts to obtain
approval for, and maintain the listing 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 maintain
internal accounting controls which provide reasonable assurance that
(1) transactions are executed in accordance with management's
authorization, (2) 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, (3) access to the assets of the Company and its
subsidiaries is permitted only in accordance with management's
authorization, and (4) the recorded accounts of the assets of the
Company and its subsidiaries are compared with existing assets at
reasonable intervals.
(n) During any period in which a prospectus is required
by law to be delivered by an Underwriter or dealer, the Company will
promptly file all documents required to be filed with the Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(o) The Company will continue to elect to qualify as a
"real estate investment trust" under the Code, and will use its best
efforts to continue to meet the requirements to qualify as a "real
estate investment trust."
5. Conditions of Underwriter's Obligation. Your obligations, as
Underwriter to purchase and pay for the Shares, as provided herein, 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
-12-
the Company contained herein, to the performance in all material respects by the
Company of its covenants and obligations hereunder, and to the following
additional conditions:
(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 your knowledge or the knowledge of the
Company, threatened or contemplated by the Commission, and any request
of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to your reasonable satisfaction.
(b) You shall not have disclosed in writing to the Company 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 opinion of your counsel, is material,
or omits to state a fact which, in the 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 (i) the
opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel for the Company, addressed
to you and dated the Closing Date, as to the matters set forth in
Schedule I attached hereto, (ii) the opinion of Piper & Marbury LLP (as
to Maryland law) and (iii) Sherin & Lodgen (as to certain matters not
otherwise addressed).
(d) You shall have received on the Closing Date, from ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇, your counsel, such opinion or opinions, dated the Closing
Date with respect to the incorporation of the Company, the validity of
the Shares, the Registration Statement, the Prospectus and 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 pass on such matters.
(e) You shall have received at or prior to the Closing Date
from ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ a memorandum or memoranda, in form and
substance satisfactory to you, with respect to the qualification for
offering and sale by you of the Shares under state securities or Blue
Sky laws of such jurisdictions as you may have designated to the
Company.
(f) On 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 satisfactory to you, confirming that they are independent
public accountants with respect to the Company within the meaning of
the Act and the published Rules and Regulations, and stating to the
effect set forth in Schedule II hereto.
-13-
(g) 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 or incorporated by
reference 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 business, operations, affairs, prospects, profits or
condition (financial or other) or income of the Company or its
subsidiaries, the effect of which, in any such case described in clause
(i) or (ii), is in your judgment so material or adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered on the Closing Date on the terms
and in the manner contemplated in the Prospectus.
(h) 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
establishing on such exchanges by the Commission or by such exchanges
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 New York 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, if
the effect of any such event specified in this clause (iii) in your
reasonable judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares in the manner
contemplated in the Prospectus; (iv) any calamity or crisis, change in
national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, if
the effect of any such event specified in this clause (iv) makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares in the manner contemplated in the Prospectus; or
(v) 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 (v) in your reasonable judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares in the manner contemplated in the Prospectus.
(i) You shall have received certificates, dated the Closing
Date and signed by the President and the Chief Financial Officer of the
Company stating that (i) they have examined the Registration Statement
and the Prospectus as amended or supplemented and all documents
incorporated by reference therein and nothing has come to their
attention that would lead them 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
-14-
their respective effective, issue or filing dates, contained, and 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 the 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, and, that (ii) all representations and
warranties made herein by the Company are true and correct in all
material respects at the Closing Date, with the same effect as if made
on and as of the Closing Date, and all agreements herein to be
performed by the Company on or prior to the Closing Date have been duly
performed in all material respects.
(j) The Company shall not have failed, refused, or been
unable, at or prior to the Closing Date to have performed in all
material respects any agreement on their part to be performed or any of
the conditions herein contained and required to be performed or
satisfied by them at or prior to the Closing Date.
(k) The Company shall have furnished to you at the Closing
Date such other certificates as you may have reasonably requested as to
the accuracy, on and as of the Closing Date, of the representations and
warranties of the Company herein and as to the performance by the
Company of their obligations hereunder.
(l) The Shares shall have been approved for trading upon
official notice of issuance on the New York Stock Exchange.
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 ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, your counsel. The Company will furnish you
with such conformed copies of such opinions, certificates, letters and documents
as you may request.
If any of the conditions specified above in this Section 5 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 notice to the Company.
6. Indemnification. (a) The Company will indemnify and hold you
harmless and each person, if any, who controls you within the meaning of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which you or such 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, any
Preliminary Prospectus, the Prospectus, or 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, filed in any
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof ("Blue Sky Application"), or arise out of or are based upon the
omission or alleged omission to state therein a
-15-
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 you and each such controlling person for any
legal or other expenses reasonably incurred by you or such 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 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 made in the Registration Statement, such
Preliminary Prospectus or the Prospectus, or such amendment or supplement, or
any Blue Sky Application in reliance upon and in conformity with written
information furnished to the Company by you, specifically for use in the
preparation thereof; 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 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 you or
controlling persons under this subsection (a) with respect to such alleged
untrue statement or alleged omission to the extent that any such loss, claim,
damage or liability of such person results from the fact that you sold Shares to
a person 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. In addition to its other obligations under
this Section 6(a), the Company agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 6(a), it will reimburse you on a monthly
basis for all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's obligation to reimburse you
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. This indemnity
agreement shall be in addition to any liabilities which the Company may
otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
trustees, 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 trustee, 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 such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, such Preliminary Prospectus or the Prospectus, such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by you specifically
for use in the preparation thereof; and will reimburse any legal or other
-16-
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. In addition to your other obligations under
this Section 6(b), you agree that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 6(b), you will reimburse the Company on a monthly
basis for all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of your obligation to reimburse the Company for
such expenses and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. This indemnity agreement
shall be in addition to any liabilities which you may otherwise have.
(c) Any party which proposes to assert the right to be
indemnified under this Section 6 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 indemnifying party under this Section
6, 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 6. 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 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 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
such fees and expenses 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 consent. Each indemnified party, as
a condition of such indemnity, shall cooperate in good faith with the
indemnifying party in the defense of any such action or claim.
-17-
(d) If the indemnification provided for in this Section 6 is for
any reason, other than pursuant to the terms thereof, judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right to appeal) to
be unavailable to an indemnified party under subsections (a) or (b) 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 you 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 benefits
but also the relative fault, as applicable, of the Company and you 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 you 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 you, 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 you and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and you agree that
it would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (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 subsection (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 subsection (d), you shall not be required
to contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by you and distributed to the public exceeds the
amount of any damages which the 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company contained herein or
in certificates delivered pursuant hereto, and your agreements contained in
Section 6 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 you or any controlling person, the Company or any of its
officers, directors or any controlling persons, and shall survive delivery of
the Shares to you hereunder.
-18-
8. Effective Date and Termination. (a) This Agreement shall become
effective upon execution.
(b) 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
5 hereof shall not have been satisfied 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 6 and 9 hereof.
If you terminate this Agreement as provided in Section 8(b), you shall
notify the Company by telephone or telegram, confirmed by letter.
9. Cost and Expenses. The Company will bear and pay the costs 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, (c) the furnishing of copies of such documents to you, (d)
the registration or qualification of the Shares for offering and sale under the
securities laws of the various states, including the reasonable fees and
disbursements of your counsel relating to such registration or qualification,
(e) the fees payable to the NASD (if any) 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 New York Stock Exchange, (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 you will bear and pay the fees and expenses
of your 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), your out-of-pocket expenses, and any advertising costs
and expenses incurred by you incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with the
provisions of Section 8(b), the Company shall reimburse you for all of your
out-of-pocket expenses, including the reasonable fees and disbursements of your
counsel.
10. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Syndicate, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, or if sent to the
Company shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed to the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
-19-
11. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, corporation 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 6, 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 or other entity. No purchaser of any of the Shares from you shall be
construed a successor or assign by reason merely of such purchase.
12. 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.
13. 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.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Missouri.
-20-
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and you.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
Accepted in St. Louis, Missouri
as of the date first above written.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
-21-
SCHEDULE I
Pursuant to Section 5(c) of the Underwriting Agreement, you shall be
furnished opinions substantially in the form of the attached.
SCHEDULE II
Pursuant to Section 5(f) of the Underwriting Agreement, Ernst & Young
LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall furnish letters to you 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 audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated by reference
in the Prospectus or the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Act and the applicable Rules and Regulations with respect to
registration statements on Form S-3; and, if applicable, they have made
a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma
financial information, prospective financial statements and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been furnished
to you.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, performing the procedures specified by
the AICPA for a review of interim financial information as discussed in
SAS No. 71, Interim Financial Information, on 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 material modifications should be made to the
unaudited statements of consolidated income, statements of
consolidated financial position and statements of consolidated
cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles, or
the unaudited statements of consolidated income, statements of
consolidated financial position and statements of consolidated
cash flows included in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations thereunder.
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus.
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included in the Prospectus.
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements.
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated working
capital, net current assets or net assets, or any changes in
any other items specified by you, 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.
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in
Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts
of consolidated net income or any changes in any other items
specified by you, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by you, except in each case for
changes, decreases or increases 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 or incorporated by reference 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 you, 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 you, 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.