EXHIBIT 1.2
OMEGA HEALTHCARE INVESTORS,
INC.
$100,000,000
Shares of Common Stock
(par value $0.10 per
share)
EQUITY DISTRIBUTION
AGREEMENT
June
12, 2009
Deutsche Bank
Securities Inc.
60 Wall
Street
New York, NY
10005
Ladies and
Gentlemen:
Omega Healthcare Investors, Inc., a Maryland
corporation (the " Company "), confirms its agreement (this
" Agreement ") with Deutsche Bank Securities Inc. (the "
Manager "), as follows:
SECTION 1.
Description of Securities . The Company proposes
to issue and sell through or to the Manager (or any Alternative
Manager (as defined below)), as sales agent and/or principal,
shares of the Company's common stock, par value $0.10 per share
(the " Common Stock "), having an aggregate gross sales
price of up to $100,000,000 (the " Maximum Amount ") on the
terms set forth in Section 3 of this Agreement. The
shares of Common Stock to be sold through or to the Manager
pursuant hereto or pursuant to a Terms Agreement (as defined below)
or through or to an Alternative Manager pursuant to an Alternative
Distribution Agreement or Alternative Terms Agreement (each term as
defined below) are referred to herein as the "Shares."
The Company has also entered into separate
equity distribution agreements (each an " Alternative Equity
Distribution Agreement " and, collectively the " Alternative
Equity Distribution Agreements "), dated of even date herewith,
with each of UBS Securities LLC, as sales agent and/or
principal, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as sales agent and/or principal (each an "
Alternative Manager " and, collectively the " Alternative
Managers "). The Company agrees that whenever it
determines to sell the Shares directly to the Manager or an
Alternative Manager as principal, it will enter into a separate
agreement (each, a " Terms Agreement " or " Alternative
Terms Agreement ," respectively) in form and substance
satisfactory to the Manager or the applicable Alternative Manager,
as the case may be, relating to such sale in accordance with
Section 3 of this Agreement. This Agreement and the
Alternative Equity Distribution Agreements are sometimes
hereinafter referred to as the "Distribution
Agreements."
The aggregate gross sales price of the Shares
that may be sold pursuant to this Agreement, the Alternative
Distribution Agreements, any Terms Agreement and any Alternative
Terms Agreement shall not exceed the Maximum Amount.
SECTION 2.
Representations and Warranties of the Company
. The Company represents and warrants to and agrees with
the Manager that:
(a)
An automatic shelf registration statement
on Form S-3 (File No. 333-150183) (the "r egistration
statement ") as defined in Rule 405 under the Securities Act of
1933, as amended, and the rules and regulations thereunder
(collectively called the " Act "), in respect of the Shares,
including a form of prospectus, has been prepared and filed by the
Company not earlier than three years prior to the date hereof, in
conformity with the requirements of the Act, and the rules and
regulations of the Securities and Exchange Commission (the "
Commission ") thereunder (the " Rules and Regulations
"). The registration statement contains certain
information concerning the offering and sale of the Common Stock,
including the Shares, and contains additional information
concerning the Company and its business; the Commission has not
issued an order preventing or suspending the use of the Basic
Prospectus (as defined below), the Prospectus Supplement (as
defined below), the Prospectus (as defined below) or any Permitted
Free Writing Prospectus (as defined below), or the effectiveness of
the Registration Statement, and no proceedings for that purpose or
pursuant to Section 8A of the Act have been instituted or, to the
Company's knowledge threatened by the Commission. Except
where the context otherwise requires, " Registration
Statement ," as used herein, means the registration statement,
as amended at the time of such registration statement's
effectiveness for purposes of Section 11 of the Act, as such
section applies to the Manager, as well as any new registration
statement, post-effective amendment or new automatic shelf
registration statement as may have been filed pursuant to Sections
4(g) or (h) of this Agreement, including (1) all documents filed as
a part thereof or incorporated or deemed to be incorporated by
reference therein, (2) any information contained or incorporated by
reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is
deemed, pursuant to Rule 430B or Rule 430C under the Act, to be
part of the registration statement at the time of such registration
statement's effectiveness for purposes of Section 11 of the Act, as
such section applies to the Manager and (3) any registration
statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act. Except where the context
otherwise requires, " Basic Prospectus ," as used herein,
means the prospectus filed as part of each Registration Statement,
together with any amendments or supplements thereto as of the date
of this Agreement. Except where the context otherwise
requires, " Prospectus Supplement ," as used herein, means
the final prospectus supplement, relating to the Shares, filed by
the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or
such earlier time as may be required under the Act), in the form
furnished by the Company to the Manager in connection with the
offering of the Shares. Except where the context
otherwise requires, " Prospectus ," as used herein, means
the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus
Supplement. Notwithstanding the
foregoing, if any revised basic
prospectus, prospectus supplement or prospectus shall be provided
to the Manager by the Company for use in connection with the
offering and sale of the Shares which differs from the Basic
Prospectus, Prospectus Supplement or Prospectus, as the case may be
(whether or not such revised basic prospectus, prospectus
supplement or prospectus is required to be filed by the Company
pursuant to Rule 424(b) of the Act), the terms "Basic
Prospectus," "Prospectus Supplement" and "Prospectus" shall refer
to such revised basic prospectus, prospectus supplement or
prospectus, as the case may be, from and after the time it is first
provided to the Manager for such use. " Permitted
Free Writing Prospectuses ," as used herein, means the
documents, if any, listed on Schedule A hereto and any other
"issuer free writing prospectus" (as defined in Rule 433 of
the Act) that the Company and the Manager shall agree from time to
time is a Permitted Free Writing Prospectus. Any
reference herein to the registration statement, the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed
to refer to and include the documents, if any, incorporated by
reference, or deemed to be incorporated by reference, therein (the
" Incorporated Documents "), including, unless the context
otherwise requires, the documents, if any, filed as exhibits to
such Incorporated Documents. Any reference herein to the
terms " amend ," " amendment " or " supplement
" with respect to the Registration Statement, the Basic Prospectus,
the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the
filing of any document under the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder (collectively,
the " Exchange Act ") on or after the initial effective date
of the Registration Statement, or the date of the Basic Prospectus,
the Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, if any, as the case may be, and deemed to be
incorporated therein by reference.
(b)
The Registration Statement complied when
it became effective, complies as of the date hereof and, as amended
or supplemented, at each deemed effective date with respect to the
Manager pursuant to Rule 430(B)(f)(2) of the Act, at each
Settlement Date (as defined in Section 3(a)(vi) hereof), and
at all times during which a prospectus is required by the Act to be
delivered (whether physically, deemed to be delivered pursuant to
Rule 153 or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares,
will comply, in all material respects, with the requirements of the
Act, and the Registration Statement did not and will not, at or
during such times, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the
conditions to the use of Form S-3 in connection with the
offering and sale of the Shares as contemplated hereby have been
satisfied; the Registration Statement meets, and the offering and
sale of the Shares as contemplated hereby comply with, the
requirements of Rule 415 under the Act (including, without
limitation, Rule 415(a)(5)); the Basic Prospectus complied or
will comply, at the time it was or will be filed with the
Commission, complies as of the date hereof (if filed with the
Commission on or prior to the date hereof) and, as of the time of
each sale of Shares pursuant to this Agreement (each, a " Time
of Sale "), at each Settlement Date and at
all
times during which a prospectus is
required by the Act to be delivered (whether physically, deemed to
be delivered pursuant to Rule 153 or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, will comply, in all material respects, with the
requirements of the Act; at no time during the period that begins
on the earlier of the date of the Basic Prospectus and the date the
Basic Prospectus was filed with the Commission and ends on each
Settlement Date did or will the Basic Prospectus, as then amended
or supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; the Prospectus will comply, as of
the date that it is filed with the Commission, the date of the
Prospectus Supplement, each Time of Sale, each Settlement Date, and
at all times during which a prospectus is required by the Act to be
delivered (whether physically, deemed to be delivered pursuant to
Rule 153 or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, in
all material respects, with the requirements of the Act (including,
without limitation, Section 10(a) of the Act); at no time
during the period that begins on the date of the Prospectus
Supplement and ends at the later of each Settlement Date and the
end of the period during which a prospectus is required by the Act
to be delivered (whether physically, deemed to be delivered
pursuant to Rule 153 or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented,
either alone or together with any combination of one or more of the
then issued Permitted Free Writing Prospectuses, if any, include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; each Permitted Free Writing Prospectus will comply, as
of its date, as of each Time of Sale and Settlement Date and at all
times during which a prospectus is required by the Act to be
delivered (whether physically, deemed to be delivered pursuant to
Rule 153 or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, in
all material respects with the requirements of the Act; at no time
during the period that begins on the date of each Permitted
Free Writing Prospectus and ends at the later of each Settlement
Date and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically, deemed to
be delivered pursuant to Rule 153 or through compliance
with Rule 172 under the Act or any similar rule) in connection
with any sale of any Shares did or will such Permitted Free Writing
Prospectus include any information that conflicted or will conflict
with any information contained in the Registration Statement, the
Prospectus or any Incorporated Document or include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation
or warranty with respect to any statement contained in the
Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning the Manager and furnished in
writing by or on behalf of the Manager expressly for use in the
Registration Statement, the Basic Prospectus, the Prospectus or
such Permitted Free Writing Prospectus, as the case may be; each
Incorporated Document, at the time such document
was
filed with the Commission or at the time such document became
effective, as applicable, complied, in all material respects, with
the requirements of the Exchange Act and did not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. For all purposes of this Agreement
(including, without limitation, the provisions of this paragraph
and of Section 6 of this Agreement), the Company and the
Manager agree that the only information furnished or to be
furnished by or on behalf of the Manager expressly for use in the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus
or any amendment or supplement to any of the foregoing is the
statement that the Manager will not engage in any transactions that
stabilize the Common Stock appearing in the fourth sentence of the
first paragraph under the caption "Plan of distribution" in the
Prospectus Supplement dated June 12, 2009.
(c)
(i) At the time of filing of the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Shares in reliance on the exemption of Rule 163 under the Act
and (iv) at the date hereof, the Company is a "well-known
seasoned issuer" as defined in Rule 405 under the
Act. The Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) under the Act objecting
to the use of the automatic shelf registration
form.
(d)
Prior to the execution of this Agreement,
the Company has not, directly or indirectly, offered or sold any
Shares by means of any "prospectus" or "free writing prospectus"
(in each case within the meaning of the Act) or used any
"prospectus" or "free writing prospectus" (in each case within the
meaning of the Act) in connection with the offer or sale of the
Shares, and from and after the execution of this Agreement, the
Company will not, directly or indirectly, offer or sell any Shares
by means of any "prospectus" or "free writing prospectus" (in
each case within the meaning of the Act) or use any "prospectus" or
"free writing prospectus" (in each case within the meaning of the
Act) in connection with the offer or sale of the Shares, other than
the Prospectus, as amended or supplemented from time to time
in accordance with the provisions of this Agreement, and any
Permitted Free Writing Prospectuses; the Company has not, directly
or indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rule 163 or with
Rules 164 and 433 under the Act; assuming that any such Permitted
Free Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and after such Permitted
Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the
sending or giving, by the Manager, of any Permitted Free Writing
Prospectus will satisfy the provisions of Rule 164 or
Rule 433 (without reliance on subsections (b), (c) and
(d) of Rule 164); the conditions set forth in one or more
of subclauses (i) through (iv), inclusive, of
Rule 433(b)(1) under the Act are satisfied,
and
the
registration statement relating to the offering of the Shares
contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433
or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the Manager is
disqualified, by reason of subsection (f) or (g) of
Rule 164 under the Act, from using, in connection with the
offer and sale of the Shares, "free writing prospectuses" (as
defined in Rule 405 under the Act) pursuant to Rules 164 and
433 under the Act; the Company is not an "ineligible issuer" (as
defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act
with respect to the offering of the Shares contemplated by the
Registration Statement; the parties hereto agree and understand
that the content of any and all "road shows" (as defined in
Rule 433 under the Act) related to the offering of the Shares
contemplated hereby are "issuer free writing prospectuses" as
defined in Rule 433 of the Act.
(e)
As of the date of this Agreement, the
Company has an authorized and outstanding capitalization as set
forth in the consolidated balance sheet as of March 31, 2009, or as
of the Company's then most recently completed quarter or fiscal
year, contained in the Company's quarterly report on Form 10-Q or
the Company's annual report on Form 10 K, as applicable, at the
indicated date, and there has been no material change in such
information since March 31, 2009, or the Company's then most
recently completed quarter or fiscal year, other than (i) the
increase in the number of authorized shares of Common Stock to
200,000,000 by the filing of the Company’s Articles of
Amendment on May 28, 2009 with the Secretary of State of the State
of Maryland, (ii) the issuance of shares of Common Stock under the
Company’s dividend reinvestment and stock purchase plan
and director and employee compensation plans; and (iii) except as
set forth in the Prospectus; all of the issued and outstanding
shares of capital stock, including the Common Stock, of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; the
Shares are duly listed, and admitted and authorized for trading,
subject to official notice of issuance, on the New York Stock
Exchange (the " NYSE ").
(f)
The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with full
corporate power and authority to acquire, own, lease and operate
its properties, to lease the same to others, to conduct its
business as described in the Registration Statement, the Prospectus
and the Permitted Free Writing Prospectuses, if any, to
execute and deliver this Agreement and will have, at the time of
execution thereof, full corporate power and authority to enter into
any Terms Agreement and to issue, sell and deliver the Shares as
contemplated herein and in any Alternative Equity Distribution
Agreement; and the Company is in compliance in all respects with
the laws, orders, rules, regulations and directives issued or
administered by such jurisdiction except where the failure to be in
compliance would not, individually or in the aggregate, either (i)
have a material adverse effect on the business, properties,
financial condition, results of operations or prospects
of
the
Company and the Subsidiaries (as defined below) taken as a whole,
(ii) prevent consummation of the transactions contemplated hereby
or by any Alternative Equity Distribution Agreement, or (iii)
result in the delisting of shares of Common Stock from the NYSE
(the occurrence of any such effect or any such prevention or
interference or any such result described in the foregoing clauses
(i), (ii) and (iii) being herein referred to as a " Material
Adverse Effect ").
(g)
The Company is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect.
(h)
The Company has no subsidiaries (as
defined under the Act) other than those subsidiaries listed on
Schedule B hereto (collectively, the " Subsidiaries
"); the Company owns all of the issued and outstanding capital
stock or equity interests, as applicable, of each of the
Subsidiaries; except as set forth in the Registration Statement,
the Prospectus or a Permitted Free Writing Prospectus, other than
the capital stock or equity interests, as applicable, of the
Subsidiaries, or as would not be material to the Company and its
Subsidiaries on a consolidated basis, the Company does not own,
directly or indirectly, any shares of stock or any other equity
interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity; complete
and correct copies of the charters and the bylaws of the Company
and all amendments thereto have been delivered to the Manager; each
Subsidiary has been duly incorporated or formed and is validly
existing as a corporation or limited liability company, as
applicable, in good standing under the laws of the jurisdiction of
its incorporation, with full corporate power or limited liability
company power, as applicable, and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any; each Subsidiary is duly qualified to
do business as a foreign corporation or limited liability company,
as applicable, and is in good standing in each jurisdiction where
the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to
be so qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect; each Subsidiary is
in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such
jurisdictions, except where the failure to be in compliance would
not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock or equity
interests, as applicable, of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right and
are owned by the Company subject to no security interest, other
material encumbrance or adverse claims other than security
interests, as disclosed in the Prospectus or granted under the
Company's existing senior credit facility or a replacement thereto;
and no options, warrants or other rights to purchase, agreements
or
other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiaries are outstanding; and the
Company has no "significant subsidiaries" (as defined in Rule 1-02
of Regulation S-X under the Act) other than those subsidiaries that
are listed in Exhibit 21 to the Company's Annual Reports on
form 10-K;
(i)
The Shares have been duly and
validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully
paid and non-assessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and
similar rights.
(j)
The capital stock of the
Company, including the Shares, conforms in all material respects to
each description thereof, if any, contained or incorporated by
reference in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus; and the certificates for the
Shares are in due and proper form and the holders of the Shares
will not be subject to personal liability by reason of being
such holders.
(k)
The Company has full corporate power and
authority to enter into this Agreement. Each of this
Agreement and the Alternative Equity Distribution Agreements has
been duly authorized, executed and delivered by the
Company. Other than any Alternative Distribution
Agreement, any Terms Agreement or any Alternative Terms Agreement,
the Company has not entered into any other sales agency or
distribution agreements or similar arrangements with any agent or
other representative in respect of the Shares and the equity shelf
program established by this Agreement. Each of this
Agreement and the Alternative Equity Distribution Agreements
constitutes a valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms,
except as the enforceability hereof and thereof may be limited by
applicable bankruptcy, insolvency, reorganization and similar laws
affecting creditors' rights generally and moratorium laws in effect
from time to time and by equitable principles restricting the
availability of equitable remedies.
(l)
Neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor
has any event occurred which, with notice, lapse of time or both,
would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on
such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (A) its respective charter or bylaws, or (B) any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them or any of
their respective properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, (D) any
rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NYSE), (E) any decree,
judgment or order applicable to (i) the Company or any of
the
Subsidiaries or (ii) any of their
respective properties, except in the case of clauses (B), (C) and
(E)(ii) above, any such breach, violation or default that would not
individually, or in the aggregate, have a Material Adverse
Effect.
(m)
The execution, delivery and performance
of this Agreement and the Alternative Equity Distribution Agreement
and the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby (A) will not conflict with, result
in any breach or violation of or constitute a default under (nor
constitute any event which, with notice, lapse of time or both,
would result in any breach or violation of or constitute a
default under or give the holder of any indebtedness (or a person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a part of such
indebtedness under) (i) the charter or bylaws of the Company or any
of the Subsidiaries, or (ii) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties
may be bound or affected, including, without limitation, the rules
and regulations of the NYSE, or (iii) any decree, judgment or order
applicable to the Company or any of the Subsidiaries or any of
their respective properties, except in the case of clause (ii)
above, any such breach, violation or default as would not
individually, or in the aggregate, have a Material Adverse Effect,
nor (B) result in the creation or imposition of any lien, charge,
claim or encumbrance upon any of the properties (real and personal
(including, without limitation, mortgage loans and unsecured
loans)) described in the Registration Statement or Prospectus as
being owned or leased by the Company or any of the Subsidiaries
(the " Properties ").
(n)
No approval, authorization, consent or
order of or filing with any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, or of or with the NYSE, or approval of the stockholders of
the Company, is required in connection with the issuance and sale
of the Shares or the consummation by the Company of the
transactions contemplated hereby, other than (i) registration of
the Shares under the Act, which has been effected, and, the
listing of the Shares on the NYSE, which has been effected, (ii)
any necessary qualification under the securities or blue sky laws
of the various jurisdictions in which the Shares are being offered
by the Manager or (iii) under the Conduct Rules of the
Financial Industry Regulatory Authority, Inc. (" FINRA
")
(o)
Except as expressly set forth in the
Registration Statement (excluding the exhibits thereto) and the
Prospectus, (i) no person has the right, contractual or otherwise,
to cause the Company to issue or sell to it any shares of Common
Stock or shares of any other capital stock or other equity
interests of the Company, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to purchase
any shares of Common Stock or shares of any other capital stock of
or other equity interests in the Company and (iii) no person has
the right to act as an underwriter, agent or financial advisor to
the Company or in any similar capacity in
connection with the offer and sale
of the Shares, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Shares as
contemplated thereby or otherwise; no person has the right,
contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other
capital stock of or other equity interests in the Company, or to
include any such shares or interests in the Registration Statement
or the offering contemplated thereby, whether as a result of
the filing or effectiveness of the Registration Statement or the
sale of the Shares as contemplated thereby or otherwise.
(p)
Each of the Company and the Subsidiaries
(and, to the Company's knowledge, each operator, lessee or
sublessee of any Property or portion thereof) (i) has all necessary
licenses, authorizations, consents and approvals, (ii) has made all
necessary filings required under any federal, state, local or
foreign law, regulation or rule and (iii) has obtained all
necessary licenses, authorizations, consents and approvals from
other persons, in order to acquire and own, lease or sublease,
lease to others and conduct its respective business as described in
the Registration Statement or Prospectus, except in the case of
clauses (i), (ii) and (iii) above, where the failure to have such
items, make such filings or obtain such items would not
individually, or in the aggregate, have a Material Adverse Effect;
neither the Company nor any of the Subsidiaries (nor, to the
Company's knowledge, any such operator, lessee or sublessee) is in
violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries,
except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material
Adverse Effect.
(q)
All legal or governmental proceedings,
affiliate transactions, off-balance sheet transactions (including,
without limitation, transactions related to, and the existence of,
"variable interest entities" within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts,
licenses, agreements, leases or documents of a character required
to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement have been
so described or filed as required.
(r)
Except as set forth in the
Registration Statement, the Prospectus or a Permitted Free Writing
Prospectus, there are no actions, suits, claims, investigations or
proceedings pending or, to the Company's knowledge, threatened or
contemplated to which the Company or any of the Subsidiaries or any
of their respective directors or officers (or, to the Company's
knowledge, any person from whom the Company or any Subsidiary
acquired any of the Properties (each, a " seller "), or any
lessee, sublessee or operator of any Property or any portion
thereof) is or would be a party or of which any of their respective
properties, or assets of the Company and the Subsidiaries, or any
Property, is or would be subject at law or in equity, before or by
any federal, state, local or foreign governmental or regulatory
commission, board, body,
authority or agency, except any such
action, suit, claim, investigation or proceeding which would not
result in a judgment, decree or order having, individually or in
the aggregate, a Material Adverse Effect. Except as set
forth in the Registration Statement, the Prospectus or a Permitted
Free Writing Prospectus, there are no actions, suits, claims,
investigations or proceedings pending, or to the Company's
knowledge, threatened or contemplated, in each case by the
Commission or FINRA to which the Company or any of the Subsidiaries
or any of their respective directors or officers is or would be a
party.
(s)
Ernst & Young LLP (the "
Accountants "), whose report on the consolidated financial
statements of the Company and the Subsidiaries is included or
incorporated by reference in the Registration Statement and the
Prospectus, are independent registered public accountants as
required by the Act and by the rules of the Public Company
Accounting Oversight Board.
(t)
The financial statements included
or incorporated by reference in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus, together with
the related notes and schedules, present fairly the consolidated
financial position of the Company and the Subsidiaries as of the
dates indicated and the consolidated results of operations, cash
flows and changes in stockholders' equity of the Company and the
Subsidiaries for the periods specified and have been prepared in
compliance with the applicable requirements of the Act and Exchange
Act and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods
involved; all pro forma financial statements or data included or
incorporated by reference in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus comply with the
applicable requirements of the Act and the Exchange Act, and the
assumptions used in the preparation of such pro forma
financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma
adjustments have been properly applied to the historical amounts in
the compilation of those statements and data; the other financial
and statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus are accurately and fairly presented and prepared
in all material respects on a basis consistent with the
financial statements and books and records of the Company and the
Subsidiaries; there are no financial statements (historical or pro
forma) that are required to be included or incorporated by
reference in the Registration Statement or the Prospectus that are
not included or incorporated by reference as required; neither the
Company nor any of the Subsidiaries has any material liabilities or
obligations, direct or contingent (including any off-balance sheet
obligations), not described in the Registration Statement
(excluding the exhibits thereto) and the Prospectus; and all
disclosures contained or incorporated by reference in the
Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus regarding "non-GAAP financial measures" (as such
term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent
applicable.
(u)
Subsequent to the respective dates as of
which information is given in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
there has not been (i) any material adverse change, or any
development which could have a reasonable possibility of
giving rise to a prospective material adverse change, in the
business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole,
(ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation or liability,
direct or contingent (including any off-balance sheet obligations),
incurred by the Company or any Subsidiary, which is material to the
Company and the Subsidiaries taken as a whole, (iv) any change in
the capital stock (except as the result of the exercise of rights
by directors and employees under the Company's stock option plans
described in the Prospectus) or outstanding indebtedness of the
Company or any Subsidiaries or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company
or any Subsidiary.
(v)
Neither the Company nor any Subsidiary is
and, after giving effect to the offering and sale of the Shares,
neither of them will be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended (the "
Investment Company Act ").
(w)
The Company, and each of the
Subsidiaries, has insurable title, and, in the case of real
property, in fee simple, to the Properties, free and clear of all
liens, claims, mortgages, deeds of trust, restrictions, security
interests or other encumbrances, or defects (" Property
Encumbrances "), except for (x) Property Encumbrances as set
forth in the Registration Statement, the Prospectus or a Permitted
Free Writing Prospectus, (y) the leasehold interests of lessees in
the Properties of the Company and the Subsidiaries held under lease
(the " Leases ") and (z) any other Property Encumbrances
that would not, individually or in the aggregate, have a Material
Adverse Effect; and all Property Encumbrances on or affecting the
Properties which are required to be disclosed in the Registration
Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are disclosed therein as
required;
(x)
Each of the
Leases pertaining to the Properties has been duly authorized by the
Company or a Subsidiary, as applicable, and is a valid, subsisting
and enforceable agreement of the Company or such Subsidiary, as
applicable, and, to the Company's knowledge, each other party
thereto, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors'
rights generally or general equitable
principles.
(y)
No person has an option or right of first
refusal to purchase all or any material portion of the Property
owned by the Company or any interest therein, and to the Company's
knowledge no such right exists with respect to any Property that
the Company leases (as lessee), except for such options or rights
of first refusal which, if exercised, will not individually or in
the aggregate have a Material Adverse Effect.
(z)
To the Company's knowledge,
except as disclosed in the Registration Statement, the Prospectus
or a Permitted Free Writing Prospectuses, if any, no lessee of any
portion of any of the Properties is in default under its respective
lease, and there is no event which, with notice, lapse of time or
both, would constitute a default under any such lease, except such
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
(aa)
To the Company's knowledge, except as
disclosed in the Registration Statement, Prospectus or a Permitted
Free Writing Prospectus, no borrower of a Company mortgage loan is
in default under its respective mortgage loan, and there is no
event which, with notice, lapse of time or both, would constitute a
default under any such mortgage loan, except such defaults that
would not, individually or in the aggregate, have a Material
Adverse Effect.
(bb)
Each of the Company and the Subsidiaries
owns, or has obtained valid and enforceable licenses for or other
rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information
described in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus as being owned or licensed by it
or which is necessary for the conduct of, or material to, their
respective businesses (collectively, the " Intellectual
Property "), except where the failure to own, license or have
such rights would not, individually or in the aggregate, have a
Material Adverse Effect.
(cc)
Except as set forth in the Registration
Statement, the Prospectus or a Permitted Free Writing Prospectus,
neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice, except as would not, individually
or in the aggregate, have a Material Adverse Effect, and there has
been no violation of any federal, state or local law relating to
discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 (" ERISA ") or the
rules and regulations promulgated thereunder concerning the
employees of the Company or any of the Subsidiaries, except as
would not, individually or in the aggregate, have a Material
Adverse Effect; there is no strike, labor dispute, slowdown or work
stoppage with the employees of the Company or any of the
Subsidiaries that is pending or, to the knowledge of the Company,
threatened;
(dd)
Except as set forth in the Registration
Statement, the Prospectus or a Permitted Free Writing Prospectus,
the Company and the Subsidiaries and their respective properties,
assets and operations (and, to the Company's knowledge, each
operator, lessee or sublessee of any Property or portion thereof)
are in compliance with, and the Company and each of the
Subsidiaries hold all permits, authorizations and approvals
required under, Environmental Laws (as defined below), except to
the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the
aggregate, have a Material Adverse Effect; there are no
past,
present or, to the Company's
knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans
that could reasonably be expected to give rise to any material
costs or liabilities to the Company or any Subsidiary under, or to
interfere with or prevent compliance by the Company or any
Subsidiary with, Environmental Laws, except as would not,
individually or in the aggregate, have a Material Adverse Effect;
except as would not, individually or in the aggregate, have a
Material Adverse Effect, neither the Company nor any of the
Subsidiaries, nor, to the Company's knowledge, any seller, lessee,
sublessee or operator of any Property or portion thereof or any
previous owner thereof, (i) is the subject of any investigation,
(ii) has received any notice or claim, (iii) is a party to or
affected by any pending or threatened action, suit or proceeding,
(iv) is bound by any judgment, decree or order or (v) has
entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release
or threatened release or cleanup at any location of any Hazardous
Materials (as defined below); and neither the Company nor any of
the Subsidiaries, nor, to the Company's knowledge, any seller,
lessee, sublessee or operator of any Property or portion thereof or
any previous owner thereof, has received from any governmental
authority notice of any violation, concerning the Properties, of
any municipal, state or federal law, rule or regulation or of any
Environmental Law, except for such violations as have heretofore
been cured and except for such violations as would not,
individually or in the aggregate, have a Material Adverse Effect
(as used herein, " Environmental Law " means any federal,
state or local law, statute, ordinance, rule, regulation, order,
decree, judgment, injunction, permit, license, authorization or
other binding requirement, or common law, relating to health,
safety or the protection, cleanup or restoration of the environment
or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and " Hazardous Materials " means any
material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or
may give rise to liability under any Environmental Law).
(ee)
Except as set forth in the Registration
Statement, the Prospectus or a Permitted Free Writing Prospectus ,
the Company and the Subsidiaries have (A) all licenses,
certificates, permits, authorizations, approvals, franchises and
other rights from, and has made all declarations and filings with,
all applicable authorities, all self-regulatory authorities and all
courts and other tribunals (each, an " Authorization ")
necessary to engage in the business conducted by it in the manner
described in the Prospectus, except as would not, individually or
in the aggregate, have a Material Adverse Effect and (B) no reason
to believe that any governmental body or agency, domestic or
foreign, is considering limiting, suspending or revoking any such
Authorization, except where any such limitations, suspensions or
revocations would not, individually or in the aggregate, have a
Material Adverse Effect; all such Authorizations are valid and in
full force and effect and the Company and the Subsidiaries are in
compliance with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such
Authorizations, except for any invalidity, failure to be in full
force and effect or
noncompliance with any Authorization
that would not, individually or in the aggregate, have a Material
Adverse Effect.
(ff)
Neither the Company nor any of the
Subsidiaries, nor, to the Company's knowledge, any seller, lessee,
sublessee or operator of any Property or portion thereof, has
received from any governmental authority any written notice of any
condemnation of, or zoning change affecting, the Properties or any
portion thereof, and the Company does not know of any such
condemnation or zoning change which is threatened, except for such
condemnations or zoning changes that, if consummated, would not,
individually or in the aggregate, have a Material Adverse Effect;
and each of the Properties, and the current and intended use and
occupancy thereof, complies with all applicable zoning laws,
ordinances and regulations, except where such failure does and will
not, individually or in the aggregate, have a Material Adverse
Effect.
(gg)
All federal, state, local and foreign
income tax returns required to be filed by the Company or any of
the Subsidiaries have been timely filed, all such tax returns are
correct and complete in all material respects, and all taxes and
other assessments of a similar nature (whether imposed directly or
through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such
entities have been timely paid, other than those being contested in
good faith and for which adequate reserves have been provided; and
to the Company's knowledge, there is no tax deficiency which
has been asserted against the Company or any Subsidiary, except any
tax deficiency which would not, individually or in the aggregate,
have a Material Adverse Effect.
(hh)
Each of the Company and the Subsidiaries
are insured by insurers of recognized financial responsibility
against such losses and risks and in such amount as the Company
reasonably deems to be adequate and as are customary in the
business in which they are engaged, except as described in the
Prospectus; except as would not, individually, or in the aggregate,
have a Material Adverse Effect, all policies of insurance insuring
the Company and the Subsidiaries or any of their businesses,
assets, employees, officers, directors and trustees are in full
force and effect on the date hereof and will be fully in force at
each Time of Sale and Settlement Date; and the Company and the
Subsidiaries are in compliance with the terms of such policies in
all material respects. Except as would not, individually or in the
aggregate, have a Material Adverse Effect or as set forth in the
Registration Statement, the Prospectus or a Permitted Free Writing
Prospectus, there are no claims by the Company or any of the
Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a
reservation of rights clause.
(ii)
Neither the Company nor any of the
Subsidiaries has sustained since the date of the last audited
consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement and the
Prospectus any loss or interference with its respective business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or
court
or
governmental action, order or decree, except for such loss or
interference as would not individually, or in the aggregate, have a
Material Adverse Effect, except as set forth in the Registration
Statement, the Prospectus or a Permitted Free Writing
Prospectus.
(jj)
Neither the Company nor any Subsidiary
has sent or received any written communication regarding
termination of, or intent not to renew, any of the leases,
contracts or agreements referred to or described in the Prospectus
or any Permitted Free Writing Prospectus, or referred to or
described in, or filed as an exhibit to, the Registration Statement
or any Incorporated Document, and no such termination or
non-renewal has been threatened by the Company or any Subsidiary
or, to the Company's knowledge after due inquiry, any other party
to any such contract or agreement, except as described in the
Prospectus and for such termination, threat or non-renewal as would
not individually, or in the aggregate, have a Material Adverse
Effect.
(kk)
The Common Stock is an "actively-traded
security" excepted from the requirements of Rule 101 of Regulation
M under the Exchange Act by subsection (c)(1) of such
rule.
(ll)
The Company and each of the Subsidiaries,
on a consolidated basis, maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compar
