EXHIBIT 1.1
UNIVERSAL HEALTH REALTY INCOME TRUST
3,000,000 Shares of Beneficial Interest
UNDERWRITING AGREEMENT
May __, 2001
UNDERWRITING AGREEMENT
May ___, 2001
UBS Warburg LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Banc of America Securities LLC
as Representatives of the several Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Universal Health Realty Income Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes to
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issue and sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 3,000,000 shares (the "Firm Shares") of
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beneficial interest (the "Common Shares") of the Company. In addition, solely
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for the purpose of covering over-allotments, the Company proposes to grant to
the Underwriters the option to purchase from the Company up to an additional
450,000 Common Shares (the "Additional Shares"). The Firm Shares and the
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Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus which is referred to
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below.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
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Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement (file
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number 333-60638) on Form S-3 under the Act (the "registration statement"), and
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such amendments to such registration statement as may have been required prior
to the date hereof have been similarly prepared and have been filed with the
Commission. Such registration statement, as so amended, and any post-effective
amendments thereto, have been declared by the Commission to be effective under
the Act. Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies
in all other material respects with said Rule. The Company will next file with
the Commission pursuant to Rule 424(b) under the Act a final prospectus
supplement to the basic prospectus included in such registration
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statement, as so amended, describing the Shares and the offering thereof, in
such form as has been provided to or discussed with, and approved, by the
Underwriters.
The term "Registration Statement" as used in this Agreement means the
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registration statement, as amended at the time it became effective, as
supplemented or amended prior to the execution of this Agreement, including (i)
all financial schedules and exhibits thereto and (ii) all documents incorporated
by reference or deemed to be incorporated by reference therein. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed and must be declared
effective before the offering of the Shares may commence, the term "Registration
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Statement" as used in this Agreement means the registration statement as amended
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by said post-effective amendment. The term "Basic Prospectus" as used in this
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Agreement means the prospectus included in the Registration Statement. The term
"Prepricing Prospectus" as used in this Agreement means any preliminary form of
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the Prospectus (as defined herein) subject to completion, in the form first
filed with, or transmitted for filing to, the Commission. The term "Prospectus
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Supplement" as used in this Agreement means any prospectus supplement
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specifically relating to the Shares, in the form filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Act. The term
"Prospectus" as used in this Agreement means the Basic Prospectus together with
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the Prospectus Supplement except that if such Basic Prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement was
first filed pursuant to Rule 424, the term "Prospectus" shall refer to the Basic
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Prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplement. Any reference in this Agreement to the registration statement, the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus, any
Prospectus Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the registration statement, the Registration
Statement, the Basic Prospectus, such Prepricing Prospectus, such Prospectus
Supplement or the Prospectus, as the case may be, and any reference to any
amendment or supplement to the registration statement, the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, any Prospectus
Supplement or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which, upon filing, are incorporated by reference
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therein, as required by paragraph (b) of Item 12 of Form S-3. As used herein,
the term "Incorporated Documents" means the documents which at the time are
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incorporated by reference in the registration statement, the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, any Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto.
The Company and the Underwriters agree as follows:
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1. Sale and Purchase. Subject to such adjustments as you may
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determine to avoid fractional shares, the Company hereby agrees, subject to all
the terms and conditions set forth herein, to issue and sell to each Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions set forth
herein, each Underwriter agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $_____ per Share (the "purchase price per
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share"), the number of Firm Shares set forth opposite the name of such
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Underwriter in Schedule A annexed hereto (or such number of Firm Shares
increased as set forth in Section 8 hereof).
The Company is advised by you that the Underwriters intend (i) to make
a public offering of their respective portions of the Firm Shares as soon after
the date hereof as in your judgment is advisable and (ii) initially to offer the
Firm Shares upon the terms set forth in the Prospectus. You may from time to
time increase or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations, warrants and
agreement of the Company and subject to all the terms and conditions herein set
forth, the Underwriters shall have the right to purchase, severally and not
jointly, from the Company, ratably in accordance with the number of Firm Shares
to be purchased by each of them (subject to such adjustment as you shall
determine to avoid fractional shares), all or a portion of the Additional Shares
as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Company for the Firm Shares. This option may be
exercised by you on behalf of the several Underwriters at any time (but not more
than once) on or before the thirtieth day following the date hereof, by written
notice to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised, and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the "additional time of purchase"); provided, however,
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that the additional time of purchase shall not be earlier than the time of
purchase (as defined below) nor earlier than the second business day/1/ after
the date on which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been exercised. The
number of Additional Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to
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/1/ As used herein "business day" shall mean a day on which the New York Stock
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Exchange is open for trading.
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the total number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
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Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
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Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on ____________, 2001 (unless another time shall be agreed to by you
or unless postponed in accordance with the provisions of Section 8 hereof). The
time at which such payment and delivery are actually made is hereinafter
sometimes called the "time of purchase." Certificates for the Firm Shares shall
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be delivered to you in definitive form in such names and in such denominations
as you shall specify no later than the second business day preceding the time of
purchase. For the purpose of expediting the checking of the certificates for the
Firm Shares by you, the Company agrees to make such certificates available to
you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall
be delivered to you in definitive form in such names and in such denominations
as you shall specify no later than the second business day preceding the
additional time of purchase. For the purpose of expediting the checking of the
certificates for the Additional Shares by you, the Company agrees to make such
certificates available to you for such purpose at least one full business day
preceding the additional time of purchase.
3. Representations and Warranties of the Company. The Company
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represents and warrants to each of the Underwriters that:
(a) No order preventing or suspending the use of the Basic
Prospectus, any Prepricing Prospectus, the Prospectus Supplement or the
Prospectus is in effect and no proceedings for such purpose are pending or,
to the knowledge of the Company, threatened by the Commission or the
securities authority of any state or other jurisdiction. The Registration
Statement has become effective under the Act; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission or the securities authority of any
state or other jurisdiction.
(b) (i) The Company is eligible to use Form S-3 and the offering of
the Shares complies with the requirements of Rule 415, (ii) each part of
the Registration Statement, when such part became effective, complied in
all material respects with
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applicable requirements of the Act and the Exchange Act, (iii) each part of
the Registration Statement, when such part became effective, did not
contain and each such part, as may be amended or supplemented, if
applicable, will not contain any 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, (iv) the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus
Supplement and the Prospectus comply and, as may be amended or
supplemented, if applicable, will comply in all material respects with the
Act and (v) the Prospectus does not contain and, as may be amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this paragraph (b) do not apply to statements or omissions in the
Registration Statement, the Basic Prospectus, any Prepricing Prospectus,
the Prospectus Supplement or the Prospectus based upon information relating
to any Underwriter furnished to the Company by such Underwriter through you
expressly for use therein.
(c) The Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act, and none of such documents, when they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements of
the Exchange Act, as applicable, and will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein not misleading.
(d) As of the date of this Agreement, the Company has and will have
an authorized capitalization as set forth under the heading entitled
"Actual" in the section of the Prospectus Supplement entitled
"Capitalization"; all of the issued and outstanding shares of beneficial
interest, including the Common Shares, of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable, have
been issued in compliance with all federal and state securities laws and
were not issued in violation of any preemptive right, resale right, right
of first refusal or similar right;
(e) The Company has been duly incorporated and is validly existing
as a real estate investment trust in good standing under the laws of the
State of Maryland,
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with full power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement.
(f) The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify in any
such jurisdiction would not individually or in the aggregate have a
material adverse effect on the business, prospects, properties, condition
(financial or otherwise) or results of operation of the Company and the
Subsidiaries (as defined herein), taken as a whole (a "Material Adverse
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Effect").
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(g) The Company has no subsidiaries other than ________
(collectively, the "Subsidiaries"). Other than the subsidiaries referred to
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above, the Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt of any other corporation or
have any direct or indirect equity interest or ownership of long-term debt
in any firm, partnership, joint venture, limited liability company,
association or other entity.
(h) Each Subsidiary that is a corporation (a "Corporate Subsidiary")
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has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with
corporate power and corporate authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus. Each Corporate Subsidiary is duly qualified
and in good standing as a foreign corporation authorized to do business in
each other jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where
the failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect. All of the outstanding shares of capital
stock of each Corporate Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable, were not issued in violation of
or subject to any preemptive or similar rights, and, except as set forth in
the Registration Statement, are owned by the Company directly, or
indirectly through one of the other Subsidiaries, free and clear of all
security interests, liens, encumbrances and equities and claims; and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into shares
of capital stock or ownership interests in any Corporate Subsidiary are
outstanding.
(i) Each Subsidiary that is a partnership (a "Partnership") has been
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duly organized, is validly existing as a partnership under the laws of its
jurisdiction of organization and has the partnership power and partnership
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement. Each Partnership is
duly qualified as a foreign partnership authorized to do
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business in each other jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect. The initial capital contributions with respect to the outstanding
units of each Partnership have been made to the Partnership. Except as set
forth in the Registration Statement and the Prospectus, the general and
limited partnership interests therein held directly or indirectly by the
Company are owned free and clear of all security interests, liens,
encumbrances and equities and claims; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into ownership interests in any
Partnership are outstanding. Each partnership agreement pursuant to which
the Company or a Subsidiary holds an interest in a Partnership is in full
force and effect and constitutes the legal, valid and binding agreement of
the parties thereto, enforceable against such parties in accordance with
the terms thereof, except as enforcement thereof may be limited by
bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles. There has been no material breach of or
default under, and no event which with notice or lapse of time would
constitute a material breach of or default under, such partnership
agreements by the Company or any Subsidiary or, to the Company's knowledge,
any other party to such agreements.
(j) Each Subsidiary that is a limited liability company (an "LLC")
has been duly organized, is validly existing as a limited liability company
under the laws of its jurisdiction of organization and has the limited
liability company power and limited liability company authority to own,
lease and operate its properties and to conduct its business as described
in the Registration Statement. Each LLC is duly qualified as a foreign
limited liability company authorized to do business in each other
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not, individually or in the aggregate, have a
Material Adverse Effect. The initial capital contributions with respect to
the outstanding membership interests of each LLC have been made to the LLC.
All outstanding membership interests in the LLCs were issued and sold in
compliance with the applicable operating agreements of such LLCs and all
applicable federal and state securities laws, and, except as set forth in
the Registration Statement and the Prospectus, the membership interests
therein held directly or indirectly by the Company are owned free and clear
of all security interests, liens, encumbrances and equities and claims; and
no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
ownership interests in any LLC are outstanding. Each operating agreement
pursuant to which the Company or a Subsidiary holds a membership interest
in an LLC is in full force and effect and constitutes the legal, valid and
binding agreement of the parties thereto,
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enforceable against such parties in accordance with the terms thereof,
except as enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles. There has been no material breach of or default under, and no
event which with notice or lapse of time would constitute a material breach
of or default under, such operating agreements by the Company or any
Subsidiary or, to the Company's knowledge, any other party to such
agreements.
(k) This Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms.
(l) The shares of beneficial interest of the Company, including the
Shares, conform in all material respects to the description thereof
included or incorporated by reference in the Registration Statement and the
Prospectus. The certificates for the Shares are in due and proper form and
conform in all material respects to the requirements of the Maryland
Corporation Act.
(m) 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 any
preemptive or similar rights.
(n) Neither the Company nor any of the Subsidiaries is in breach or
violation of, or in default under (and no event has occurred which with
notice, lapse of time, or both would result in any breach or violation of,
or constitute a default under), its Declaration of Trust, charter or by-
laws or other organizational documents or in the performance or observance
of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any 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 properties is bound or affected, the
effect of which would, individually or in the aggregate, have a Material
Adverse Effect. The execution, delivery and performance of this Agreement
and the issuance and sale of the Shares contemplated hereby and by the
Registration Statement will not conflict with, or 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), any provisions of the Declaration of
Trust, charter or by-laws or other organizational documents of the Company
or any of the Subsidiaries or under any provision of any license, permit,
franchise, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a
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party or by which any of them or their properties may be bound or affected,
or under any federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company any of the
Subsidiaries, the result of which would, individually or in the aggregate,
have a Material Adverse Effect; the execution, delivery and performance of
this Agreement and the issuance and sale of the Shares contemplated hereby
and by the Registration Statement will not result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of the Subsidiaries pursuant to any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which any of
their properties is bound or affected, the result of which could,
individually or in the aggregate, have a Material Adverse Effect.
(o) No approval, authorization, consent or order of or filing with
any federal, state or local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection with
the issuance and sale of the Shares or the consummation by the Company of
the transaction as contemplated hereby other than registration of the
Shares under the Act and any necessary qualification under the securities
or blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters or under the rules and regulations of NASD
Regulation, Inc. ("NASDR").
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(p) Except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any shares of
beneficial interest or other equity interests; and (ii) no person has
preemptive rights, co-sale rights, rights of first refusal or other rights
to purchase any Common Shares. No person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of
beneficial interest or other equity interests as a result of the filing or
effectiveness of the Registration Statement or the sale of Shares
contemplated thereby, except for such rights as have been complied with or
waived.
(q) Xxxxxx Xxxxxxxx LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries was filed with the
Commission as part of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 and is incorporated by reference in the
Registration Statement and Prospectus, are independent public accountants
as required by the Act.
(r) All legal or governmental proceedings, contracts, 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.
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(s) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or
any of the Subsidiaries or any lessee, sublessee or operator of any
Property or portion thereof is a party or of which any of the Company's or
any of the Subsidiaries' property or assets or, to the knowledge of the
Company, any Property is the subject, and, to the Company's knowledge, no
such proceedings are threatened or contemplated. Neither the Company nor
any of the Subsidiaries has, nor, to the Company's knowledge, any person
from whom the Company or any of the Subsidiaries acquired any of the
Properties (a "seller"), lessee, sublessee or operator of any Property, or
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portion thereof or any previous owner thereof has, received from any
governmental authority notice of any material violation of any municipal,
state or federal law, rule or regulation (including without limitation any
such law, rule or regulation applicable to the health care industry
("Health Care Laws") and including foreign, federal, state or local law or
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regulation relating to human health or safety or the environment or
Hazardous Materials, as defined below ("Environmental Laws") concerning the
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Properties, or any part thereof which has not heretofore been cured, and
neither the Company nor any of the Subsidiaries and, to the Company's
knowledge, each such other person, does not know of any such violation, or
any occurrence or circumstance that would give rise to a claim under or
pursuant to any Environmental Laws, which would, 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 has, received
from any governmental authority any written notice of any condemnation of
or zoning change affecting the Properties, or any part thereof and the
Company does not know of any such condemnation or zoning change which is
threatened and which if consummated would have a Material Adverse Effect,
or a material adverse effect on any of the Properties. No contract or
document of a character required to be described in the Registration
Statement, the Prospectus or any Incorporated Document or to be filed as an
exhibit to the Registration Statement or any Incorporated Document is not
so described, filed or incorporated by reference as required.
(t) The Company and the Subsidiaries have good and indefeasible
title in fee simple to the properties disclosed in the Prospectus as being
owned by them (the "Properties"), free and clear of all liens,
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encumbrances, claims, mortgages, deeds of trust, restrictions, security
interests and defects ("Property Encumbrances"), except for: (x) the
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leasehold interests of lessees in the Company's and the Subsidiaries'
properties held under lease (the "Leases") and (y) any other Property
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Encumbrances that would not, individually or in the aggregate, have a
Material Adverse Effect or a material adverse effect on such Property. All
Property Encumbrances on or affecting the Properties which are required to
be disclosed in the Prospectus are disclosed therein.
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(u) Except as otherwise set forth in the Prospectus, neither the
Company nor any of the Subsidiaries, nor to the best of the Company's
knowledge, any seller, lessee, sublessee or operator of any Property or
portion thereof has knowledge of (i) the presence of any hazardous or toxic
substances or wastes, pollutants or contaminants ("Hazardous Materials")
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at, on or under any of the Properties or (ii) any spills, releases,
discharges or disposal of Hazardous Materials at, on or under or occurring
in connection with any of the Properties, other than those that would not
have, individually or in the aggregate, a Material Adverse Effect.
(v) The Company and each of the Subsidiaries and, to the Company's
knowledge, each of the operators, lessees or sublessees of any Property or
portion thereof has such permits, licenses, approvals, certificates,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any Health Care Laws or
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Environmental Laws, as are necessary in the case of each such party, as the
case may be, to acquire and own, lease or sublease, lease to others and
conduct its business, all as described in the Prospectus, except where the
failure to obtain such permits would not individually or in the aggregate
have a Material Adverse Effect, or a material adverse effect on such
Property; the Company and each of the Subsidiaries and, to the Company's
knowledge, each of the lessees or sublessees of any Property or portion
thereof has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of any
such permit; and, except as described in the Prospectus, such permits
contain no restrictions that are materially burdensome to the Company and
the Subsidiaries, taken as a whole. Each of the Properties and the current
and intended use and occupancy thereof, complies with all applicable zoning
laws, ordinances and regulations in all material respects, except where
such failure does not materially impair the value of the applicable
Property and will not result in a forfeiture or reversion of title. Neither
the Company nor any of the Subsidiaries is in violation of, or in default
under, any such permit 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 the effect of which could have a
Material Adverse Effect.
(w) The financial statements, together with the related schedules
and notes, forming a part of the Registration Statement and the Prospectus
(and any amendment or supplement thereto) 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. Such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
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involved. The pro forma financial data included in the Registration
Statement and the Prospectus comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X of the
Securities Act, and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements. The other
financial and statistical data set forth in the Registration Statement and
the Prospectus are accurately presented and prepared on a basis consistent
with such financial statements and books and records of the Company. There
are no financial statements (historical or pro forma) that are required to
be included in the Registration Statement and the Prospectus that are not
included as required.
(x) 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, or any prospective material adverse
change, in the business, properties, condition (financial or otherwise), or
results of operations of the Company and the Subsidiaries taken as a whole,
(ii) any transaction which is material to the Company or the Subsidiaries,
(iii) any obligation, direct or contingent, which is material to the
Company and the Subsidiaries taken as a whole, incurred by the Company or
the Subsidiaries, (iv) any change in the shares of beneficial interest or
outstanding indebtedness of the Company or the Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the capital
stock of the Company. Neither the Company nor the Subsidiaries has any
material contingent obligation which is not disclosed in the Registration
Statement.
(y) The Company has obtained for the benefit of the Underwriters the
agreement (a "Lock-Up Agreement") of each of its directors and executive
-----------------
officers and of Universal Health Services Inc. ("UHS") not to sell, offer
to sell, contract to sell, hypothecate, grant any option to sell or
otherwise dispose of, directly or indirectly, any Common Shares or
securities convertible into or exchangeable for Common Shares or warrants
or other rights to purchase Common Shares for a period of 90 days after the
date of the Prospectus Supplement without the prior written consent of UBS
Warburg LLC.
(z) Each of the Leases pertaining to the Properties has been duly
authorized by the Company or one of the Subsidiaries, as applicable, and is
a valid and binding agreement of the Company or one of the Subsidiaries, as
applicable, and, to the knowledge of the Company, each other party thereto,
enforceable in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
13
(aa) To the knowledge of the Company, no lessee of any portion of
any of the Properties is in default under its respective lease and there is
no event which, but for the passage of time or the giving of notice or
both, would constitute a default under any such lease, except such defaults
that would, individually or in the aggregate, not have a Material Adverse
Effect.
(bb) The Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amount as are customary in the business in which it is engaged. All
policies of insurance insuring the Company and the Subsidiaries or any of
their businesses, assets, employees, officers and directors are in full
force and effect, and the Company and the Subsidiaries are in compliance
with the terms of such policies in all material respects. 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.
(cc) Neither the Company nor any of the Subsidiaries has either sent
or received any communication regarding termination of, or intent not to
renew, any of the contracts or agreements referred to or described in, or
filed as an exhibit to, the Registration Statement, and no such termination
or non-renewal has been threatened by the Company or any of the
Subsidiaries or any other party to any such contract or agreement,
including, without limitation, the Advisory Agreement, dated as of December
24, 1986 between UHS Delaware, Inc. and the Company, as amended.
(dd) All statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required.
(ee) Neither the Company nor any of the Subsidiaries or any of their
respective affiliates has taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(ff) The Company and the Subsidiaries own or have obtained licenses
(which such licenses are enforceable against the Company and/or the
Subsidiaries, as applicable, and, to the Company's best knowledge, the
other parties thereto) for the patents, patent applications, inventions,
technology, trademarks, trademark registrations, service marks, service
xxxx registrations, trade names, copyrights, trade secrets and rights
described in the Prospectus as being owned or used by or licensed to the
Company and the Subsidiaries or necessary for the conduct of their business
as
14
currently conducted (collectively, the "Intellectual Property"), and the
---------------------
Company is not aware of any claim to the contrary or any challenge by any
other person to the rights of the Company and the Subsidiaries with respect
to the Intellectual Property.
(gg) The Company and the Subsidiaries have not sustained since the
date of the latest audited financial statements included in the Prospectus
any loss or interference with their businesses from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
disclosed in the Prospectus or other than any loss or interference, which
could individually or in the aggregate have a Material Adverse Effect.
(hh) The Company and the Subsidiaries have not violated any federal,
state, local or foreign law or regulation relating to discrimination in the
hiring, promotion or pay of employees or any applicable wages and hours
laws, nor any provisions of the Employee Retirement Income Security Act of
1976, as amended, or the rules and regulations promulgated thereunder or
any similar act or law, which could individually or in the aggregate result
in a Material Adverse Effect.
(ii) The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances 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 compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(jj) The Company and the Subsidiaries have filed all federal, state,
local and foreign tax returns and tax forms required to be filed. Such
returns and forms are complete and correct in all material respects, and
all taxes shown by such returns or otherwise assessed that are due or
payable have been paid, except such taxes as are being contested in good
faith and as to which adequate reserves have been provided. All payroll
withholdings required to be made by the Company and the Subsidiaries with
respect to employees have been made. The charges, accruals and reserves on
the books of the Company and the Subsidiaries in respect of any tax
liability for any year not finally determined are adequate to meet any
assessments or reassessments for additional taxes. There have been no tax
deficiencies asserted and, to the Company's knowledge, no tax deficiency
might be reasonably asserted or threatened against the Company and/or the
Subsidiaries that could individually or in the aggregate have a Material
Adverse Effect.
15
(kk) The outstanding Common Shares are, and the Shares as of the
date the Registration Statement becomes effective will be, listed on the
New York Stock Exchange (the "NYSE").
----
(ll) The Company meets the requirements for qualification and
taxation as a real estate investment trust ("REIT") under the Internal
----
Revenue Code of 1986 (the "Code").
----
(mm) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
----------------------
4. Certain Covenants of the Company. The Company hereby agrees:
--------------------------------
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be required
--------
to qualify as a foreign corporation or to consent to the service of process
under the laws of any such state (except service of process with respect to
the offering and sale of the Shares); and to promptly advise you of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto) as
the Underwriters may reasonably request for the purposes contemplated by
the Act; in case any Underwriter is required to deliver a prospectus beyond
the nine-month period referred to in Section 10(a)(3) of the Act in
connection with the sale of the Shares, the Company will prepare promptly
upon request, but at its request, such amendment or amendments to the
Registration Statement and such prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to make every
16
reasonable effort to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement the
Registration Statement or Prospectus including by filing any documents that
would be incorporated therein by reference and to file no such amendment or
supplement to which you shall object in writing;
(d) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the date
of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the shares, and to
promptly notify you of such filing;
(e) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(f) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission, (iii) copies of documents or
reports filed with any national securities exchange on which any class of
securities of the Company is listed, and (iv) such other information as you
may reasonably request regarding the Company or the Subsidiaries, in each
case as soon as such communications, documents or information becomes
available;
(g) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which, in
the judgment of the Company, would require the making of any change in the
Prospectus then being used, or in the information incorporated therein by
reference, so that the Prospectus would not include an untrue statement of
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(h) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the
17
effective date of the Registration Statement (as defined in Rule 158(c) of
the Act) as soon as is reasonably practicable after the termination of such
twelve-month period;
(i) to furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and of cash flow of the Company
for such fiscal year, accompanied by a copy of the certificate or report
thereon of nationally recognized independent certified public accountants;
(j) to furnish to you five signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto and documents incorporated by
reference therein) and sufficient conformed copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other
Underwriters;
(k) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim consolidated financial statements, if any, of the Company
and its Subsidiaries which have been read by the Company's independent
certified public accountants, as stated in their letter to be furnished
pursuant to Section 8(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(m) to pay all expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
issuance, sale and delivery of the Shares by the Company, (iii) the word
processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Statements of Information, the
Custody Agreement and the Powers of Attorney and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and
to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and the
determination of their eligibility for investment under state law as
aforesaid (including the legal fees and filing fees and other disbursements
of counsel to the Underwriters) and the printing and furnishing of copies
of any blue sky surveys or legal investment surveys to the Underwriters and
to dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the Nasdaq Stock Market
("Nasdaq") and any registration thereof under the Exchange Act, (vi) the
------
filing for review of the public offering of the Shares by the
18
NASDR (including the legal fees and filing fees and other disbursements of
counsel to the Underwriters), and (vii) the performance of the Company's
other obligations;
(n) to furnish to you, before filing with the Commission subsequent
to the effective date of the Registration Statement and during the period
referred to in paragraph (g) above, a copy of any document proposed to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(o) not to sell, offer to sell, contract to sell, hypothecate,
pledge, grant any option to sell or otherwise dispose of, directly or
indirectly, any Common Shares or securities convertible into or
exchangeable or exercisable for Common Shares or options, warrants or other
rights to purchase Common Shares or any other shares of the Company that
are substantially similar to Common Shares or file a registration statement
under the Act relating to the offer and sale of any shares of Common Shares
or securities convertible into or exchangeable or exercisable for Common
Shares or options, warrants or other rights to purchase Common Shares or
any other shares of the Company that are substantially similar to Common
Shares for a period of ninety (90) days after the date hereof (the
"Lock-up Period"), without the prior written consent of UBS Warburg LLC,
--------------
except for (i) the registration of the Shares and the sales to the
Underwriters pursuant to this Agreement, (ii) issuances of Common Shares
upon the exercise of outstanding options or warrants as disclosed in the
Registration Statement and the Prospectus to persons who have entered into
Lock-Up Agreements with the Underwriters and (iii) the issuance of employee
stock options not exercisable during the Lock-up Period pursuant to stock
option plans described in the Registration Statement and the Prospectus;
(p) to use its best efforts to cause the Shares to be listed on the
NYSE; and
(q) to use its best efforts to continue to qualify as a REIT under
Sections 856 through 860 of the Code.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
---------------------------------------
delivered for any reason other than the termination of this Agreement pursuant
to clause (ii), (iii) or (iv) of the second paragraph of Section 7 hereof or
pursuant to the last paragraph of Section 8 hereof or the default by one or more
of the Underwriters in its or their respective obligations hereunder, the
Company shall, in addition to paying the amounts described in Section 4 hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
---------------------------------------
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof and
at the time of purchase (and the several
19
obligations of the Underwriters at the additional time of purchase are subject
to the accuracy of the representations and warranties on the part of the Company
on the date hereof and at the time of purchase (unless previously waived) and at
the additional time of purchase, as the case may be), the performance by the
Company of their obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of
Fulbright & Xxxxxxxx L.L.P., counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters, stating that:
(i) the Company has been duly organized and is validly existing
as a real estate investment trust in good standing under the laws of
the State of Maryland, with full power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as herein
contemplated;
(ii) each of the Subsidiaries is a corporation or other legal
entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization with the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business;
(iii) the Company and each of the Subsidiaries are duly
qualified to do business as foreign corporations or other legal
entities and are in good standing in each jurisdiction in which the
ownership or leasing of their properties or the conduct of their
business requires such qualification, except where the failure to so
qualify would not individually or in the aggregate have a Material
Adverse Effect;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company, and is a legal, valid and binding agreement
of the Company, enforceable in accordance with its terms, except as
enforcement of the same may be limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and except as to those provisions relating to indemnities
for liabilities arising under the Act as to which no opinion need be
expressed.
20
(v) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered to and paid for by the
Underwriters, will be validly issued, fully paid and non-assessable;
(vi) the Company has authorized and outstanding shares of
beneficial interest as set forth or incorporated by reference in the
Registration Statement and the Prospectus; the outstanding shares of
beneficial interest of the Company have been duly and validly
authorized and issued and are fully paid, nonassessable and free of
any preemptive rights, resale rights, rights of first refusal and
similar rights under the Maryland Corporation Act or under any
contract, agreement or instrument described in or filed as an exhibit
to the Registration Statement or otherwise known to such counsel; the
Shares being sold by the Company, when issued, will be free of any
preemptive rights, resale rights, rights of first refusal and similar
rights under the Maryland Corporation Act; and the certificates for
the Shares are in due and proper form and conform in all material
respects to the requirements of the Maryland Corporation Act;
(vii) except as described in the Registration Statement and
the Prospectus, all of the outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, are owned by the Company and are not
subject to any perfected security interest or, to such counsel's
knowledge, any other encumbrance or adverse claim; to such counsel's
knowledge, 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;
(viii) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Act;
(ix) the Registration Statement has become effective under
the Act and, to such counsel's knowledge, no stop order proceedings
with respect thereto are pending or threatened under the Act and any
required filing of the Prospectus, and any supplement thereto pursuant
to Rule 424 under the Act has been made in the manner and within the
time period required by such Rule 424;
21
(x) no approval, authorization, consent or order of or
filing with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby and by the Registration Statement,
other than those that have been obtained under the Act and other than
any necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being
offered by the Underwriters, as to which such qualification such
counsel need express no opinion;
(xi) the execution, delivery and performance of this
agreement by the Company and the transactions contemplated hereby and
by the Registration Statement do not and will not conflict with, or
result in any breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time, or both, would result in
any breach of, or constitute a default under) any provisions of the
Declaration of Trust, charter or by-laws or other organizational
documents of the Company or any of the Subsidiaries; to such counsel's
knowledge, neither the Company nor any of the Subsidiaries is in
violation of its Declaration of Trust, charter or by-laws or other
organizational documents;
(xii) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to
be described in the Prospectus which have not been so filed or
described;
(xiii) the Company is not, and after the offering and sale of
the Shares, will not be, an "investment company," for or an entity
controlled by an "investment company," as such terms are defined in
the Investment Company Act; and
(xiv) to such counsel's knowledge the statements in (i) the
Registration Statement and the Prospectus under the captions [insert
captions, include tax captions] insofar as such statements constitute
summaries of regulatory matters, contracts, agreements or other legal
documents, or refer to statements of law or legal conclusions, are
accurate in all material respects and present fairly the information
required to be shown with respect to the Company and the Subsidiaries,
as of the date of the Prospectus and as of the date of such opinion;
and nothing has come to such counsel's attention that causes such
counsel to believe that the above-described portions of the
Prospectus, at the date of the Prospectus or at the
22
date of such opinion, contained or contains an untrue statement of
material fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
In addition, such counsel shall state that, in the opinion of such
counsel, and assuming the elections and other procedural steps described in the
Prospectus under the caption "Certain Federal Income Tax Considerations" are
completed by the Company in a timely fashion, the Company was and is organized
in conformity with the requirements for qualification as a REIT and its methods
of operations as described in the Prospectus permits it to meet the requirements
for qualification and taxation as a REIT.
Also, such counsel shall state that it has participated in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statement and Prospectus
were discussed and, although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus (except as and
to the extent stated in subparagraphs (ix), (x) and (xviii) above), on the basis
of the foregoing nothing has come to the attention of such counsel that causes
them to believe that the Registration Statement or any amendment thereto at the
time such Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any supplement thereto at the date of such Prospectus
or such supplement, and at all times up to and including the time of purchase or
additional time of purchase, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included in
the Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxx X.
Xxxxxxx, general counsel of UHS, addressed to the Underwriters, and dated
the time of purchase or the additional time of purchase, as the case may
be, with reproduced copies for each of the other Underwriters and in form
satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, stating
that:
(i) the Company has been duly organized and is validly existing
as a real estate investment trust in good standing under the laws of
the State of Maryland, with full power and authority to own, lease and
23
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as herein
contemplated;
(ii) each of the Subsidiaries is a corporation or other legal
entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization with the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business;
(iii) the Company and each of the Subsidiaries are duly
qualified to do business as foreign corporations or other legal
entities and are in good standing in each jurisdiction in which the
ownership or leasing of their properties or the conduct of their
business requires such qualification, except where the failure to so
qualify would not individually or in the aggregate have a Material
Adverse Effect;
(iv) the execution, delivery and performance of this
agreement by the Company and the transactions contemplated hereby and
by the Registration Statement do not and will not conflict with, or
result in any breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time, or both, would result in
any breach of, or constitute a default under) (A) any provisions of
the Declaration of Trust, charter or by-laws or other organizational
documents of the Company or any of the Subsidiaries, (B) any provision
of any license, permit, franchise, indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or
any lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which their
respective properties may be bound or affected that is described in or
filed as an exhibit to the Registration Statement or is otherwise
known by such counsel or (C) any federal, state, local or foreign law,
regulation or rule, or any decree, judgment or order applicable to the
Company or the Subsidiaries;
(v) to such counsel's knowledge, neither the Company nor any
of the Subsidiaries is in violation of its Declaration of Trust,
charter or by-laws or other organizational documents, nor is any of
them 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, or constitute a default under), any license,
permit, franchise, indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of
24
indebtedness, or any lease, contract or other agreement or instrument
to which the Company or any of the Subsidiaries is or was a party or
by which any of them or their respective properties may be bound or
affected and which is known to such counsel or in violation of any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the
Subsidiaries, the effect of which would individually or in the
aggregate have a Material Adverse Effect
(vi) to such counsel's knowledge, except as described in the
Prospectus or as would not, individually or in the aggregate, have a
Material Adverse Effect, there are no private or governmental actions,
suits, claims, investigations or proceedings pending, threatened or
contemplated to which the Company or any of the Subsidiaries or any of
their officers is subject or of which any of their properties is
subject, whether at law, in equity or before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency; and
(vii) to such counsel's knowledge, no person has the right,
pursuant to the terms of any contract, agreement or other instrument
described in or filed as an exhibit to the Registrations Statement, to
cause the Company to register under the Act any shares of beneficial
interest or other equity interests as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares
as contemplated hereby, except for such rights as have been complied
with or waived; and to the knowledge of such counsel, except as
described in the Registration Statement and Prospectus, no person is
entitled to registration rights with respect to shares of capital
stock or other securities of the Company.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
Prospectus, on the basis of the foregoing nothing has come to the attention of
such counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at all times up to and including
the time of purchase or
25
additional time of purchase, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included in
the Registration Statement or Prospectus).
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time of purchase
with respect to the issuance and sale of the Shares by the Company, the
Registration Statement, the Prospectus and such other related matters as
the Underwriters may require. In addition, Xxxxx Xxxxxxxxxx LLP may rely on
the opinion of Fulbright & Xxxxxxxx L.L.P. as to all matters of Maryland
law.
(d) You shall have received from Xxxxxx Xxxxxxxx LLP, a letter
dated, respectively, the date of this Agreement and the time of purchase
and the additional time of purchase, as the case may be, and addressed to
the Underwriters (with reproduced copies for each of the Underwriters) in
the forms approved by Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters.
(e) No amendment or supplement to the Registration Statement or
Prospectus, including documents deemed to be incorporated by reference
therein, shall have been to which you have objected in writing.
(f) Prior to the time of purchase and the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall 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; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall 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 are made, not misleading.
(g) Between the time of execution of this Agreement and the time of
purchase and the additional time of purchase, as the case may be, (i) no
material and unfavorable change, financial or otherwise (other than as
referred to in the Registration Statement and Prospectus), in the business,
prospects, properties, condition of the Company and the Subsidiaries taken
as a whole shall occur or become
26
known and (ii) no transaction which is material and unfavorable to the
Company and the Subsidiaries taken as a whole shall have been entered into
by the Company or any of the Subsidiaries.
(h) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, there
shall not have occurred any downgrading, nor shall any notice or
announcement have been given or made of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company or any of the Subsidiaries by any "nationally recognized
statistical rating organization," as that term is defined in Rule 436(g)(2)
under the Act.
(i) You shall have received Lock-up Agreements of each of the
Company's directors and executive officers and of UHS not to sell, offer to
sell, contract to sell, hypothecate grant any option to sell or otherwise
dispose of, directly or indirectly, any Common Shares or securities
convertible into or exchangeable for Common Shares or warrants or other
rights to purchase Common Shares for a period of 90 days after the date of
the Prospectus Supplement without the prior written consent of UBS Warburg
LLC.
(j) The Company will, at the time of purchase and the additional
time of purchase, as the case may be, deliver to you a certificate of two
of its executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of such date, that the Company has performed such of its
obligations under this Agreement as are to be performed at or before the
time of purchase and the conditions set forth in paragraphs (f), (g) and
(h) of this Section 6 have been met.
(k) The Company will, at the time of purchase and the additional
time of purchase, as the case may be, deliver to you a certificate signed
by the chief financial officer and the chief accounting officer of the
Company substantially in such form approved by you and counsel to the
Underwriters, respecting the Company's compliance, both prior to and after
giving effect to the transactions contemplated hereby, with the financial
covenants set forth in the Company's credit agreement and certain other
agreements and instruments respecting outstanding indebtedness of the
Company and the Subsidiaries.
The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase as you may
reasonably request.
27
7. Effective Date of Agreement; Termination. This Agreement shall
----------------------------------------
become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares (i) if, since the time of execution of this Agreement or
the respective dates as of which information is given in the Registration
Statement and Prospectus, (y) there has been any material adverse and
unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, prospects, properties,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiaries taken as a whole, which would, in your judgment or in the
judgment of such group of Underwriters, make it impracticable to market the
Shares, or (z) there shall have occurred any downgrading, or any notice shall
have been given of (a) any intended or potential downgrading or (b) any review
or possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any of the Subsidiaries by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act or (ii) if, at any time prior to the time of
purchase, trading in securities on the New York Stock Exchange, the American
Stock Exchange or Nasdaq shall have been suspended or limitations or minimum
prices shall have been established on the NYSE, the American Stock Exchange or
the Nasdaq or (iii) if, at any time prior to the time of purchase, a banking
moratorium shall have been declared either by the United States or New York
State authorities, or (iv) if, at any time prior to the time of purchase, the
United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4, 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
28
8. Increase in Underwriters' Commitments. Subject to Sections 6
-------------------------------------
and 7, if any Underwriter shall default in its obligation to take up and pay for
the Firm Shares to be purchased by it hereunder (otherwise than for reasons
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the principal amount of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed 10% of the total aggregate principal amount of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of Firm Shares they are obligated to purchase pursuant to
Section 1 hereof) the principal amount of Firm Shares agreed to be purchased by
all such defaulting Underwriters, as hereinafter provided. Such Firm Shares
shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such principal amount or amounts as you may designate with the
consent of each Underwriter so designated or, in the event no such designation
is made, such Firm Shares shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of Firm
Shares set opposite the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Prospectus and other documents may be
effected.
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate principal amount of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total
aggregate principal amount of Shares which all Underwriters agreed to purchase
hereunder, and if neither the non-defaulting Underwriters nor the Company shall
make arrangements within the five business day period stated above for the
purchase of all the Shares which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall be terminated without further
act or deed and without any liability on the part of the Company to any non-
defaulting Underwriter and without any liability on the part of any non-
defaulting Underwriter to the Company. Nothing in this paragraph, and no action
taken hereunder, shall relieve any
29
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Indemnity and Contribution.
--------------------------
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors, officers, employees and agents and
any person who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Basic Prospectus, any
Prepricing Prospectus, any Prospectus Supplement or in the Prospectus (or
in any of the foregoing as the same may at any time be amended or
supplemented), or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated in the Registration
Statement, the Basic Prospectus, any Prepricing Prospectus, any Prospectus
Supplement or the Prospectus (or in any of the foregoing as the same may at
any time be amended or supplemented) or necessary to make the statements
made therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished by or on behalf of any Underwriter
through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement, the Basic Prospectus, any
Prepricing Prospectus, any Prospectus Supplement or the Prospectus (or in
any of the foregoing as the same may at any time be amended or
supplemented) or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be stated in the Registration Statement, the Basic Prospectus,
any Prepricing Prospectus, any Prospectus Supplement or the Prospectus (or
in any of the foregoing as the same may at any time be amended or
supplemented) or necessary to make such information not misleading or (ii)
any untrue statement or alleged untrue statement made by the Company in
Section 3 of this Agreement or the failure by the Company to perform when
and as required any agreement or covenant contained herein or (iii) any
untrue statement or alleged untrue statement of any material fact contained
in any audio or visual materials provided by the Company or based upon
written information furnished by or on behalf of the Company including,
without limitation, slides, videos, films, tape recordings, used in
connection with the marketing of the Shares.
If any action, suit or proceeding (together, a "Proceeding") is
----------
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the
30
Company pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Company in writing of the institution of such
Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
-------- -------
to so notify the Company shall not relieve the Company from any liability which
the Company may have to any Underwriter or any such person or otherwise. Such
Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances employed counsel to have
charge of the defense of such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from, additional to or in conflict with those available
to the Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company and
paid as incurred (it being understood, however, that the Company shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Company shall not be liable for any settlement of any such
Proceeding effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
31
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors, officers, employees and agents, and
any person who controls the Company within the meaning of Section 15 of the
Act, or Section 20 of the Exchange Act, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person
may incur under the Act, the Exchange Act, or common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished by
or on behalf of such Underwriter through you to the Company expressly for
use with reference to such Underwriter in the Registration Statement, the
Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement or
in the Prospectus (or in any of the foregoing as such document may at any
time be amended or supplemented) or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with
such information required to be stated in the Registration Statement, the
Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement or
the Prospectus (or in any of the foregoing as such document may at any time
be amended or supplemented) or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, provided, however, that the omission to so
-------- -------
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No
32
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damage, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportion as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price is the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or
33
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating, preparing to defend or defending
any claim or Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors, officers, employees or agents or any person (including each partner,
officer, director, employee or agent of such person) who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors, officers,
employees or agents or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares. The
Company and each Underwriter agree promptly to notify each other commencement of
any Proceeding against it and, in the case of the Company, against any of the
Company's officers, directors, employees or agents in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. Notices. Except as otherwise herein provided, all statements,
-------
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, with a copy to Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxxxx Esq., and if to the
Company, shall be sufficient in all respects if delivered or sent to the Company
at the offices of the Company at Universal Corporate Center, 000 Xxxxx Xxxxx
00
Xxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Xxxx X. Xxxxxx,
President and Chief Financial Officer, with a copy to Fulbright & Xxxxxxxx,
L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxxx, Esq.
11. Governing Law; Construction. This Agreement and any claim,
---------------------------
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement (a "Claim"), directly or indirectly, shall be
-----
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no
--------------------------
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against an Underwriter or any
indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been
-------------------
and is made solely for the benefit of the Underwriters, the Company and to the
extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such Section, and their respective successors, assigns,
heirs, pursuant representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Information Furnished by the Underwriters. The statements
-----------------------------------------
set forth in the last sentence on the penultimate paragraph on the cover page of
the Prospectus Supplement and the statements set forth in the ____ paragraphs
under the caption "Underwriting" in the Prospectus Supplement constitute the
only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3 and 9 hereof.
35
15. Counterparts. This Agreement may be signed by the parties in
one or more counterparts that together shall constitute one and the same
agreement among the parties.
16. Successors and Assigns. This Agreement shall be binding upon
----------------------
the Underwriters, the Company and their respective successors and assigns and
any successor or assign of any substantial portion of the Company's and any of
the Underwriters' respective businesses and/or assets.
17. Miscellaneous. UBS Warburg LLC, an indirect, wholly-owned
-------------
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of UBS Warburg LLC may have lending relationships
with issuers of securities underwritten or privately placed by UBS Warburg LLC.
To the extent required under the securities laws, prospectuses and other
disclosure documents for securities underwritten or privately placed by UBS
Warburg LLC will disclose the existence of any such lending relationships and
whether the proceeds of the issue will be used to repay debts owed to affiliates
of UBS Warburg LLC.
36
If the foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the Underwriters severally.
Very truly yours,
UNIVERSAL HEALTH REALTY INCOME TRUST
By:
---------------------------------
Name:
Title:
Accepted and agreed to
as of the date first above written:
UBS WARBURG LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BANC OF AMERICA SECURITIES LLC
By: UBS WARBURG LLC
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
37
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS Warburg LLC...........................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated........................
Banc of America Securites LLC.............................................
--------------
Total............................................ $
==============
S-1
