NATIONWIDE HEALTH PROPERTIES,
INC.
5,000,000 SHARES OF COMMON
STOCK
KeyBanc Capital
Markets Inc.
127 Public Square
Cleveland, Ohio 44114
NATIONWIDE HEALTH
PROPERTIES, INC., a Maryland corporation (the “
Company ”), confirms its agreement (this
“ Agreement ”) with KeyBanc Capital
Markets Inc. (“KeyBanc”), as follows:
1.
Issuance and Sale of Shares . The Company agrees that, from
time to time during the term of this Agreement, on the terms and
subject to the conditions set forth herein, it may issue and sell
through KeyBanc, acting as agent and/or principal, up to 5,000,000
shares (the “ Shares ”) of the
Company’s common stock, par value $0.10 per share (the
“ Common Stock ”). The issuance and sale
of Shares through KeyBanc will be effected pursuant to the
Registration Statement (as defined below) filed by the Company and
which became effective upon filing with the Securities and Exchange
Commission (the “ Commission ”) under
Rule 462(e) under the Securities Act (as defined below), although
nothing in this Agreement shall be construed as requiring the
Company to use the Registration Statement to issue
Shares.
The Company has
also entered into a sales agreement (the “Cantor Sales
Agreement”), dated of even date herewith, with Cantor
Fitzgerald & Co. (“Cantor”). The aggregate number
of shares of Common Stock that may be sold pursuant to this
Agreement and the Cantor Sales Agreement shall not exceed 5,000,000
shares.
The Company has
filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder
(collectively, the “ Securities Act ”),
with the Commission an automatic shelf registration statement on
Form S-3 (File No. 333-164384), including a base prospectus,
with respect to equity and other offerings, including the Shares,
and which incorporates by reference documents that the Company has
filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the “ Exchange
Act ”). The Company has prepared a prospectus
supplement (the “ Prospectus Supplement
”) to the base prospectus included as part of such
registration statement, relating to the offering of the Shares. The
Company has furnished to KeyBanc, for use by KeyBanc, copies of one
or more prospectuses included as part of such registration
statement, as supplemented by the Prospectus Supplement. Except
where the context otherwise requires, such registration statement,
when it became effective, including the information, if any, deemed
pursuant to Rule 430A, 430B, or 430C under the Securities Act
to be
part of the
registration statement at the time of its effectiveness (“
Rule 430 Information ”) and all documents
filed as part thereof or incorporated by reference therein, and
including any information contained in a Prospectus (as defined
below) subsequently filed with the Commission pursuant to Rule
424(b) under the Securities Act, collectively, are herein called
the “ Registration Statement ,” and the
base prospectus included in the registration statement, including
all documents incorporated therein by reference, as it may be
supplemented by the Prospectus Supplement, in the form filed by the
Company with the Commission pursuant to Rule 424(b) under the
Securities Act, together with any “issuer free writing
prospectus”, as defined in Rule 433 of the Securities Act
(“ Rule 433 ”), relating to the
Shares that (i) is required to be filed with the Commission by
the Company or (ii) is exempt from filing pursuant to Rule
433(d)(5)(i), in each case, in the form filed or required to be
filed with the Commission or, if not required to be filed, in the
form retained in the Company’s records pursuant to
Rule 433(g), is herein called the “
Prospectus .” Any reference herein to the
Registration Statement, the Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference
herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein (such
documents incorporated or deemed to be incorporated by reference
are herein called the “Incorporated Documents”). For
purposes of this Agreement, all references to the Registration
Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering Analysis and Retrieval
system or its Interactive Data Electronic Applications system
(collectively, “ EDGAR ”).
2.
Placements . Each time that the Company wishes to issue and
sell Shares hereunder (each, a “ Placement
”), it will notify KeyBanc by telephonic or email notice (or
other method mutually agreed to in writing by the Parties) of the
number of Shares (“ Placement Shares ”)
to be issued, the time period during which sales are requested to
be made, any limitation on the number of Shares that may be sold in
any one day and any minimum price below which sales may not be made
(a “ Placement Notice ”), which order
shall be confirmed by KeyBanc, the form of which is attached hereto
as Schedule 1 . Subsequent to any Placement
Notice the Company originates via telephone, it will, within two
Trading Days (as defined herein), send an email notice confirming
such Placement Notice. A Placement Notice shall originate from any
of the individuals from the Company set forth on
Schedule 3 (with a copy to each of the other
individuals from the Company listed on such schedule), and shall be
addressed to each of the individuals from KeyBanc set forth on
Schedule 3 , as such
Schedule 3 may be amended from time to time. A
Placement Notice shall be effective unless and until
(i) KeyBanc declines to accept the terms contained therein for
any reason, in its sole discretion, (ii) all Placement Shares
have been sold, (iii) the Company suspends or terminates the
Placement Notice or (iv) this Agreement has been terminated
under the provisions of Section 11 . The amount of any
discount, commission or other compensation to be paid by the
Company to KeyBanc in connection with the sale of the Placement
Shares shall be calculated in accordance with the terms set forth
in Schedule 2 . It is expressly acknowledged and
agreed that neither the Company nor KeyBanc will have any
obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to
KeyBanc and KeyBanc does not decline such Placement Notice pursuant
to the terms set forth above, and then only upon the terms
specified therein and herein. In the event of a conflict between
the terms of
2
this Agreement
and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale
of Placement Shares by KeyBanc .
(a) Upon
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, upon the Company’s issuance of a Placement Notice, and
unless the sale of the Placement Shares described therein has been
declined, suspended or otherwise terminated in accordance with the
terms of this Agreement, KeyBanc will use its commercially
reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares up to the amount specified,
and otherwise in accordance with the terms of such Placement
Notice. KeyBanc will provide written confirmation to the Company no
later than the opening of the Trading Day (as defined below) next
following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold
on such day, the compensation payable by the Company to KeyBanc
with respect to such sales pursuant to Section 2, and the Net
Proceeds (as defined below) payable to the Company, with an
itemization of deductions made by KeyBanc (as set forth in
Section 5(a) ) from gross proceeds for the Placement
Shares that it receives from such sales. KeyBanc may sell Placement
Shares by any method permitted by law deemed to be an
“at-the-market” offering, as defined in Rule 415
of the Securities Act, including without limitation sales made
directly on the New York Stock Exchange (the “
Exchange ”), on any other existing trading
market for the Common Stock or to or through a market maker. With
the written consent of the Company, KeyBanc may also sell Placement
Shares in privately negotiated transactions. The Company
acknowledges and agrees that (i) there can be no assurance
that KeyBanc will be successful in selling Placement Shares,
(ii) KeyBanc will incur no liability or obligation to the
Company or any other person or entity if it does not sell Placement
Shares for any reason other than a failure by KeyBanc to use its
commercially reasonable efforts consistent with its normal trading
and sales practices to sell such Placement Shares as required under
this Section 3 , and (iii) KeyBanc shall be under
no obligation to purchase Shares on a principal basis pursuant to
this Agreement. For the purposes hereof, “ Trading
Day ” means any day on which Common Stock is
purchased and sold on the principal market on which the Common
Stock is listed or quoted.
(b) The
Company agrees that any offer to sell, any solicitation of an offer
to buy, or any sales of Shares shall only be effected by or through
only one of KeyBanc or Cantor on any single given day, but in no
event by both, and the Company shall in no event request that
KeyBanc and Cantor sell Shares on the same day.
(a) The
Company or KeyBanc may, upon notice to the other party in writing
(including by email correspondence to each of the individuals of
the other Party set forth on Schedule 3 , if
receipt of such correspondence is actually acknowledged by any of
the individuals to whom the notice is sent, other than via
auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the
individuals of the other Party set forth on
Schedule 3 ), suspend any sale of Placement
Shares; provided, however , that such suspension shall not
affect or impair either party’s obligations with respect to
any
3
Placement
Shares sold hereunder prior to the receipt of such notice. Each of
the Parties agrees that no such notice under this
Section 4 shall be effective against the other unless
it is made to one of the individuals named on
Schedule 3 hereto, as such Schedule may be
amended from time to time.
(b) Notwithstanding
any other provision of this Agreement, the Company shall not offer,
sell or deliver, or request the offer or sale of, any Shares and,
by notice to KeyBanc given by telephone (confirmed promptly by
facsimile transmission or email), shall cancel any instructions for
the offer or sale of any Shares, and KeyBanc shall not be obligated
to offer or sell any Shares (i) during any other period in
which the Company is, or could be deemed to be, in possession of
material non-public information or (ii) at any time and from
and including the date (each, an “ Announcement
Date ”) on which the Company shall issue a press
release containing, or shall otherwise publicly announce, its
earnings, revenues or other results of operations (each, an “
Earnings Announcement ”) through and including
the time that is 24 hours after the time that the Company files (a
“ Filing Time ”) a Quarterly Report on
Form 10-Q or an Annual Report on Form 10-K that includes
consolidated financial statements as of and for the same period or
periods, as the case may be, covered by such Earnings
Announcement.
(a)
Settlement of Placement Shares . Unless otherwise specified
in the applicable Placement Notice, settlement for sales of
Placement Shares will occur on the third (3rd) Trading Day (or such
earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a “
Settlement Date ”). The amount of proceeds to
be delivered to the Company on a Settlement Date against receipt of
the Placement Shares sold (the “ Net Proceeds
”) will be equal to the aggregate sales price received by
KeyBanc at which such Placement Shares were sold, after deduction
for (i) KeyBanc’s commission, discount or other
compensation for such sales payable by the Company pursuant to
Section 2 hereof, (ii) any other amounts due and
payable by the Company to KeyBanc hereunder pursuant to
Section 7(g) (Expenses) and (iii) any transaction
fees imposed by any governmental or self-regulatory organization in
respect of such sales.
(b)
Delivery of Placement Shares . On or before each Settlement
Date, the Company will, or will cause its transfer agent to,
electronically transfer the Placement Shares being sold by
crediting KeyBanc’s or its designee’s (provided KeyBanc
shall have given the Company written notice of such designee prior
to the Settlement Date) account at The Depository Trust Company
through its Deposit and Withdrawal at Custodian System or by such
other means of delivery as may be mutually agreed upon by the
parties hereto, which in all cases shall be freely tradeable,
transferable, registered shares in good deliverable form. On each
Settlement Date, KeyBanc will deliver the related Net Proceeds in
same day funds to an account designated by the Company prior to the
Settlement Date. If the Company defaults in its obligation to
deliver Placement Shares on a Settlement Date, the Company agrees
that in addition to and in no way limiting the rights and
obligations set forth in Section 9(a) (Indemnification by the
Company), it will (i) hold KeyBanc harmless against any loss,
claim, damage, or expense (including reasonable legal fees and
expenses), as incurred, arising out of or in connection with such
default by the Company and (ii) pay to KeyBanc any commission,
discount, or other compensation to which it would otherwise have
been entitled absent such
4
default;
provided, however, that the Company shall not be obligated to so
indemnify and reimburse KeyBanc if the Placement Shares are not
delivered due to (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ; (ii) a general
moratorium on commercial banking activities declared by either
federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services
in the United States; (iii) an outbreak or escalation of
hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war: or
(iv) any other calamity or crisis or any material change in
financial, political or economic conditions in the United States or
elsewhere.
6.
Representations and Warranties of the Company . The Company
represents and warrants to, and agrees with, KeyBanc that as of the
date of this Agreement and as of each Representation Date (as
defined in Section 7(m) ) on which a certificate is
required to be delivered pursuant to Section 7(m) and as of the
time of each sale of any Shares pursuant to this Agreement (each an
“ Applicable Time ”), as the case may
be:
(a) the
Registration Statement became effective upon filing under Rule
462(e) of the Securities Act; no stop order of the Commission
preventing or suspending the use of the base prospectus, the
Prospectus Supplement or the Prospectus, or the effectiveness of
the Registration Statement, has been issued, and no proceedings for
such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission; at the time of the
initial filing of the Registration Statement and at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities 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), the Company was a “well-known seasoned
issuer,” as defined in Rule 405 of the Securities Act,
including not having been an “ineligible issuer,” as
defined Rule 405 of the Securities Act; the Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405 of the Securities
Act, and the Shares, since their registration on the Registration
Statement, have been and remain eligible for registration by the
Company on a Rule 405 “automatic shelf registration
statement;” the Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) of the Securities Act
objecting to the use of the automatic shelf registration statement
form; the Company has paid or will pay the required Commission
filing fees relating to the Shares within the time required by
Rule 456(b)(1)(i) of the Securities Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Securities Act (including, if applicable, by updating
the “Calculation of Registration Fee” table in
accordance with Rule 456(b)(1)(ii) of the Securities Act
either in a post-effective amendment to the Registration Statement
or on the cover page of the Prospectus); the Registration Statement
complied when it became effective and at each deemed effective date
with respect to KeyBanc pursuant to Rule 430B(f)(2) of the
Securities Act, as the case may be, complies and, at each
Settlement Date and the time when the Prospectus Supplement, or any
amendment or supplement thereto, is filed with the Commission under
Rule 424(b) under the Securities Act, will comply, and each base
prospectus, the Prospectus Supplement and the Prospectus conformed
as of their respective dates, conform and, at each Settlement Date,
and the time when the Prospectus Supplement, or any amendment or
supplement thereto, is filed with the Commission under Rule 424(b)
under the Securities Act, will conform in all material respects
with the requirements of the Securities Act (including
Rule 415 under the Securities Act); the Registration Statement
did not at the time of
5
effectiveness
and at each deemed effective date with respect to KeyBanc pursuant
to Rule 430B(f)(2) of the Securities Act, as the case may be,
does not and, at each Settlement Date and the time when the
Prospectus Supplement, or any amendment or supplement thereto, is
filed with the Commission under Rule 424(b) under the Securities
Act, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the base
prospectus, the Prospectus Supplement and the Prospectus did not as
of their respective dates, do not and, at each Settlement Date and
any time at which the Prospectus is delivered in connection with
any sale of Shares, will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no warranty
or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing by KeyBanc to the
Company expressly for use in the Registration Statement or the
Prospectus; each Incorporated Document, at the time such document
was filed with the Commission, at the times the base prospectus,
the Prospectus Supplement and Prospectus were filed with the
Commission under Rule 424(b) under the Securities Act and at the
time the Registration Statement became effective, complied in all
material respects with the requirements of the Securities Act and
the Exchange Act and did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; the Company has not distributed and will not distribute
any “prospectus” (within the meaning of the Securities
Act) or offering material in connection with the offering or sale
of the Shares other than the then most recent Prospectus Supplement
and any Issuer Free Writing Prospectus (as defined in Rule 433
under the Securities Act) reviewed and consented to by KeyBanc, in
each case accompanied by the then most recent base prospectus; each
issuer free writing prospectus (as defined in Rule 433 under
the Securities Act), as of its issue date and as of each Applicable
Time, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any Incorporated Document deemed to be a part thereof
that has not been superseded or modified; provided, however, that
the Company makes no warranty or representation with respect to any
statement contained in any issuer free writing prospectus in
reliance upon and in conformity with information furnished in
writing by KeyBanc to the Company expressly for use in such issuer
free writing prospectus; the Company is eligible to use issuer free
writing prospectuses in connection with the offering of the Shares
pursuant to Rules 164 and 433 of the Securities Act; any
issuer free writing prospectus that the Company is required to file
pursuant to Rule 433 of the Securities Act has been, or will
be, timely filed with the Commission in accordance with the
requirements of Rule 433 of the Securities Act; and each
issuer free writing prospectus that the Company has filed, or is
required to file, pursuant to Rule 433 of the Securities Act
or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the
requirements of the Securities Act;
(b) as
of the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth in the Registration
Statement and the Prospectus and, as of each Settlement Date, the
Company shall have an authorized and outstanding capitalization as
set forth in the Registration Statement and the Prospectus
(subject, in each case, to the issuance of shares of Common Stock
under this Agreement, the issuance of shares of Common Stock upon
exercise of stock options and warrants disclosed as outstanding in
the Registration Statement and
6
the Prospectus,
the grant of options under existing stock option plans described in
the Registration Statement and the Prospectus and the issuance of
Common Stock pursuant to the Company’s dividend reinvestment
and stock purchase plans described in the Registration Statement
and 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, in all material
respects, with all federal and state securities laws (except as
disclosed in the Company’s Quarterly Report on Form 10-Q for
the quarter ended June 30, 2009) and were not issued in
violation of any preemptive right or similar right; and no further
approval or authority of the stockholders or the Board of Directors
of the Company are required for the issuance and sale of the
Shares;
(c) 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 the corporate power and authority to acquire, own,
lease and operate its properties, and to lease the same to others,
and to conduct its business as described in the Registration
Statement and the Prospectus, to execute and deliver this Agreement
and to issue and sell the Shares as contemplated herein; and the
Company 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 (as defined below);
(d) the
Company is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction (and attached hereto
as Schedule 4 is an accurate and complete list
of each such 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, either
(i) have a material adverse effect on the business, financial
condition, results of operations or prospects of the Company and
its subsidiaries taken as a whole or (ii) prevent consummation
of the transactions contemplated hereby (the occurrence of such
effect or such prevention described in the foregoing clauses
(i) and (ii) being herein referred to as a “
Material Adverse Effect ”);
(e) Each
subsidiary of the Company (each a “ Subsidiary
” and collectively, the “ Subsidiaries
”) that is a significant subsidiary, as defined in
Rule 1-02(w) of Regulation S-X promulgated by the Commission
(each a “ Significant Subsidiary ” and
collectively, the “ Significant Subsidiaries
”), has been duly incorporated or organized and is validly
existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of
the jurisdiction of its incorporation or organization, has
corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation, limited liability
company or limited partnership, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a Material Adverse Effect; all
of the issued and outstanding capital stock of, or other ownership
interests in, each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable
and, except for directors’ qualifying shares, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage,
7
pledge, lien,
encumbrance, claim or equity; and attached hereto as
Schedule 5 is an accurate and complete list of
the Significant Subsidiaries;
(f) 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
preemptive rights and similar rights;
(g) the
capital stock of the Company, including the Shares, conforms in all
material respects to the description thereof contained in the
Registration Statement and the 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 solely by reason of being
such holders;
(h) this
Agreement has been duly authorized, executed and delivered by the
Company;
(i) neither
the Company nor any of the Significant 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) (i) its respective charter
or bylaws, or other organizational documents, or any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or (ii) any license, lease, contract
or other agreement or instrument to which the Company or any of the
Significant Subsidiaries is a party or by which any of them or any
of their respective properties may be bound or affected, or
(iii) any federal, state or, to the Company’s knowledge,
local regulation or rule, or the rules and regulations of the
Exchange, or 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 clauses (ii) and (iii), for
breaches, violations, defaults and events that would not,
individually or in the aggregate, have a Material Adverse Effect;
and the execution, delivery and performance of this Agreement and
the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby has been duly authorized by all
necessary corporate action and will neither (A) 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) the charter or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries, or 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, or any federal, state or, to the
Company’s knowledge, local law, regulation or rule, or the
rules and regulations of the Exchange, or any decree, judgment or
order applicable to the Company or any of the Subsidiaries; 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 by the Company or any of the Subsidiaries (the “
Properties ” and, such of the Properties that
are real property, the “ Real
8
Properties ”), except, in the case of clause (B), for
liens, charges, claims and encumbrances that would not,
individually or in the aggregate, have a Material Adverse
Effect;
(j) no
consent, approval, authorization, order or decree of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except
such as may be required under the Securities Act or as may be
required by state securities or blue sky laws;
(k) no
person has the right to act as an underwriter or as a financial
advisor to the Company 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; and no person has the right, contractual or
otherwise, to cause the Company to register under the Securities
Act any shares of Common Stock or shares of any other capital stock
or other securities of the Company;
(l) each
of the Company and the Significant Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or
foreign law, regulation or rule, and 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 where the failure to
have or obtain such licenses, authorizations, consents and
approvals and to make such filings would not, individually or in
the aggregate, have a Material Adverse Effect; and neither the
Company nor any of the Subsidiaries 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;
(m) there
are no contracts or documents which are required to be filed as
exhibits to the Registration Statement or any Incorporated
Documents which have not been so filed as required;
(n) except
as disclosed in the Registration Statement and Prospectus, there
are no actions, suits, claims, investigations or proceedings
pending or, to the Company’s knowledge, threatened to which
the Company or any of the Subsidiaries is or would be a party, or
of which any of the 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 should not have a reasonable possibility of
resulting in a judgment, decree or order having, individually or in
the aggregate, a Material Adverse Effect;
(o) Ernst
& Young LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is incorporated by
reference in the Registration Statement and the Prospectus, is an
independent registered public accounting firm as required by the
Securities Act;
9
(p) the
financial statements included or incorporated by reference in the
Registration Statement and the 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 and cash
flows of the Company and the Subsidiaries for the periods specified
and have been prepared in compliance with the requirements of the
Securities Act and Exchange Act and in conformity with generally
accepted accounting principles applied on a consistent basis during
the periods involved; any pro forma financial statements or data
included or incorporated by reference in the Registration Statement
and the Prospectus comply with the requirements of
Regulation S-X promulgated by the Commission, including,
without limitation, Article 11 thereof, 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 circumstances referred to 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 set forth or incorporated
by reference in the Registration Statement and the Prospectus are
accurately presented and prepared on a basis consistent with the
financial statements and books and records of the Company; the
Company and the Subsidiaries do not have any material liabilities
or obligations, direct or contingent (including any off-balance
sheet obligations or any “variable interest entities”
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration
Statement and the Prospectus; and all disclosures contained in the
Registration Statement or the Prospectus, including the documents
incorporated by reference therein, regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the Commission) comply, in all material respects,
with Regulation G promulgated by the Commission and
Item 10 of Regulation S-K promulgated by the Commission,
to the extent applicable;
(q) subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been
(i) any material adverse change in the business, financial
condition, results of operations or prospects of the Company and
the Subsidiaries taken as a whole, (ii) any transaction, other
than in the ordinary course, which is material to the Company and
the Subsidiaries taken as a whole, (iii) any obligation,
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 authorized capital stock of the Company, or (v) except
for regular quarterly dividends on the Common Stock or the
Company’s outstanding preferred stock, any dividend or
distribution of any kind declared, paid or made on the capital
stock of the Company;
(r) the
Company is not required to be registered under the Investment
Company Act of 1940, as amended (the “ Investment
Company Act ”);
(s) the
Company and the Subsidiaries have good title to the Properties,
and, in the case of Real Property, free and clear of all liens,
claims, mortgages, deeds of trust, restrictions, security interests
and other encumbrances or defects (“ Property
Encumbrances ”), except as disclosed in the
Registration Statement and Prospectus and except for (x) the
leasehold interests of lessees in the Real Property of the Company
and the Subsidiaries held under lease (the “
Leases ”) and (y) any other Property
Encumbrances that would not, individually or in the aggregate, have
a Material Adverse Effect or a material adverse effect on such
Property; and all
10
Property
Encumbrances on or affecting the Properties which are required to
be disclosed in the Prospectus or Registration Statement are
disclosed therein as required;
(t) each
of the Leases 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, 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;
(u) except
as otherwise disclosed in the Prospectus, the Company has no
knowledge of: (i) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, “ Hazardous Materials
”) on any of its properties or (ii) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or from its properties as a
result of any construction on or operation and use of its
properties, which presence or occurrence would have a Material
Adverse Effect; and in connection with the construction on or
operation and use of its properties, the Company has no knowledge
of any material failure to comply with all applicable local, state
and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal
of any Hazardous Materials that could have a Material Adverse
Effect;
(v) the
Company has adequate title insurance on its Properties owned in fee
by the Company or its Significant Subsidiaries;
(w) the
Company, and each of the Significant Subsidiaries, maintains 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 book value for assets is
compared with the fair market value of such assets (computed in
accordance with generally accepted accounting principles) at
reasonable intervals and appropriate action is taken with respect
to any differences;
(x) the
Company is in compliance in all material respects with all
applicable effective provisions of the Sarbanes-Oxley Act of 2002
(the “ Sarbanes-Oxley Act ”) and the
rules and regulations of the Commission and the Exchange
promulgated thereunder;
(y) at
all times since December 31, 1985, the Company has met,
currently meets, and as of the time of purchase or additional time
of purchase, as the case may be, will meet, the requirements for
qualification and taxation as a real estate investment trust
(“ REIT ”) under the Internal Revenue
Code of 1986 (the “ Code ”); and the
Company intends to continue to meet such requirements unless the
Company’s board of directors in good faith determines by
resolution that it is in the best interests of the Company’s
stockholders not to meet such requirements;
11
(z) neither
the Company nor any of the Subsidiaries has taken, directly or
indirectly, any action designed to stabilize or manipulate,
under
|
