COLONIAL PROPERTIES TRUST Common Shares of Beneficial Interest, $.01 par value per share EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.2
COLONIAL PROPERTIES TRUST
Common Shares of Beneficial Interest, $.01 par value per share
Dated: December 10, 2010
Table of Contents
Page | ||||
SECTION 1. Description of Securities
|
1 | |||
SECTION 2. Placements
|
2 | |||
SECTION 3. Sale of Placement Securities by Xxxxx Fargo
|
3 | |||
SECTION 4. Suspension of Sales
|
4 | |||
SECTION 5. Representations and Warranties
|
4 | |||
SECTION 6. Sale and Delivery to Xxxxx Fargo; Settlement
|
16 | |||
SECTION 7. Covenants of the Company
|
18 | |||
SECTION 8. Payment of Expenses
|
24 | |||
SECTION 9. Conditions of Xxxxx Fargo’s Obligations
|
25 | |||
SECTION 10. Indemnification
|
27 | |||
SECTION 11. Contribution
|
30 | |||
SECTION 12. Representations, Warranties and Agreements to Survive Delivery
|
31 | |||
SECTION 13. Termination of Agreement
|
31 | |||
SECTION 14. Notices
|
32 | |||
SECTION 15. Parties
|
33 | |||
SECTION 16. Adjustments for Stock Splits
|
33 | |||
SECTION 17. Governing Law and Time
|
33 | |||
SECTION 18. Effect of Headings
|
33 | |||
SECTION 19. Definitions
|
33 | |||
SECTION 20. Permitted Free Writing Prospectuses
|
36 | |||
SECTION 21. Absence of Fiduciary Relationship
|
36 |
i
EXHIBITS
Exhibit A
|
– | Form of Placement Notice | ||
Exhibit B
|
– | Authorized Individuals for Placement Notices and Acceptances | ||
Exhibit C
|
– | Compensation | ||
Exhibit D-1
|
– | Form of Opinion of Xxxxx Lovells US LLP | ||
Exhibit D-2
|
– | Form of Opinion of Leitman, Siegal, Xxxxx & Xxxxxxxx, P.C. | ||
Exhibit D-3
|
– | Form of Opinion of Sirote & Permutt, P.C. | ||
Exhibit E
|
– | Officers’ Certificate | ||
Exhibit F
|
– | Permitted Free Writing Prospectus |
ii
Colonial Properties Trust
(an Alabama Real Estate Investment Trust)
(an Alabama Real Estate Investment Trust)
Common Shares of Beneficial Interest, $.01 par value per share
December 10, 2010
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Colonial Properties Trust, an Alabama real estate investment trust (the “Company”),
and Colonial Realty Limited Partnership, a limited partnership organized under the laws of the
State of Delaware (the “Operating Partnership”), of which the Company is the sole general
partner, each confirms its agreement (this “Agreement”) with Xxxxx Fargo Securities, LLC
(“Xxxxx Fargo”), as follows:
SECTION 1. Description of Securities.
Each of the Company and the Operating Partnership agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth herein, the Company
may issue and sell through Xxxxx Fargo, acting as agent and/or principal, shares (the
“Securities”) of the Company’s common shares of beneficial interest, $.01 par value per
share (the “Common Shares”), having an aggregate offering price of up to $100,000,000.00
(the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth in this Section 1 regarding the
aggregate offering price of the Securities issued and sold under this Agreement shall be the sole
responsibility of the Company, and Xxxxx Fargo shall have no obligation in connection with such
compliance. The issuance and sale of the Securities through Xxxxx Fargo will be effected pursuant
to the Registration Statement (as defined below) filed by the Company and declared effective by the
Securities and Exchange Commission (the “Commission”), although nothing in this Agreement
shall be construed as requiring the Company to use the Registration Statement to issue the
Securities.
The Company has filed, in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the “Securities Act”),
with the Commission a registration statement on Form S-3 (File No. 333-158081), including a base
prospectus, relating to certain securities, including the Securities to be issued from time to time
by the Company, and which incorporates by reference documents that the Company has filed or will
file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the “Exchange Act”). The Company has
1
prepared a prospectus supplement specifically relating to the Securities (the “Prospectus
Supplement”) to the base prospectus included as part of such registration statement. The
Company will furnish to Xxxxx Fargo, for use by Xxxxx Fargo, copies of the prospectus included as
part of such registration statement, as supplemented by the Prospectus Supplement, relating to the
Securities. Except where the context otherwise requires, such registration statement, as amended
when it became effective, including all documents filed as part thereof or incorporated by
reference therein, and including any information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed
to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein
called the “Registration Statement.” The base prospectus, including all documents
incorporated therein by reference, included in the Registration Statement, as it may be
supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus
Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b)
under the Securities Act is herein called the “Prospectus.” Any reference herein to the
Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated by reference therein, and any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference therein. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission pursuant to XXXXX.
The Company and the Operating Partnership have also entered into a separate equity
distribution agreement (the “Alternative Distribution Agreement”), dated as of even date
herewith, with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Alternative
Manager”). The aggregate offering price of the Securities that may be sold pursuant to this
Agreement and the Alternative Distribution Agreement shall not exceed the Maximum Amount.
SECTION 2. Placements.
Each time that the Company wishes to issue and sell the Securities hereunder (each, a
“Placement”), it will notify Xxxxx Fargo by email notice (or other method mutually agreed
to in writing by the parties) containing the parameters in accordance with which it desires the
Securities to be sold, which shall at a minimum include the number of Securities to be issued (the
“Placement Securities”), the time period during which sales are requested to be made, any
limitation on the number of Securities that may be sold in any one day and any minimum price below
which sales may not be made (a “Placement Notice”), a form of which containing such minimum
sales parameters necessary is attached hereto as Exhibit A. The Placement Notice shall
originate from any of the individuals from the Company set forth on Exhibit B (with a copy
to each of the other individuals from the Company listed on such schedule), and shall be addressed
to each of the individuals from Xxxxx Fargo set forth on Exhibit B, as such Exhibit
B may be amended from time to time.
2
If Xxxxx Fargo wishes to accept such proposed terms included in the Placement Notice (which it
may decline to do for any reason in its sole discretion) or, following discussion with the Company,
wishes to accept amended terms, Xxxxx Fargo will, prior to 4:30 p.m. (New York City Time) on the
business day following the business day on which such Placement Notice is delivered to Xxxxx Fargo,
issue to the Company a notice by email (or other method mutually agreed to in writing by the
parties) addressed to all of the individuals from the Company and Xxxxx Fargo set forth on
Exhibit B) setting forth the terms that Xxxxx Fargo is willing to accept. Where the terms
provided in the Placement Notice are amended as provided for in the immediately preceding sentence,
such terms will not be binding on the Company or Xxxxx Fargo until the Company delivers to Xxxxx
Fargo an acceptance by email (or other method mutually agreed to in writing by the parties) of all
of the terms of such Placement Notice, as amended (the “Acceptance”), which email shall be
addressed to all of the individuals from the Company and Xxxxx Fargo set forth on Exhibit
B. The Placement Notice (as amended by the corresponding Acceptance, if applicable) shall be
effective upon receipt by the Company of Xxxxx Fargo’s acceptance of the terms of the Placement
Notice or upon receipt by Xxxxx Fargo of the Company’s Acceptance, as the case may be, unless and
until (i) the entire amount of the Placement Securities has been sold, (ii) in accordance with the
notice requirements set forth in the second sentence of this paragraph, the Company terminates the
Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters
superseding those on the earlier dated Placement Notice, (iv) this Agreement has been terminated
under the provisions of Section 13 or (v) either party shall have suspended the sale of the
Placement Securities in accordance with Section 4 below. The amount of any commission, discount or
other compensation to be paid by the Company to Xxxxx Fargo in connection with the sale of the
Placement Securities shall be calculated in accordance with the terms set forth in Exhibit
C. It is expressly acknowledged and agreed that neither the Company nor Xxxxx Fargo will have
any obligation whatsoever with respect to a Placement or any Placement Securities unless and until
the Company delivers a Placement Notice to Xxxxx Fargo and either (i) Xxxxx Fargo accepts the terms
of such Placement Notice or (ii) where the terms of such Placement Notice are amended, the Company
accepts such amended terms by means of an Acceptance pursuant to the terms set forth above, and
then only upon the terms specified in the Placement Notice (as amended by the corresponding
Acceptance, if applicable) and herein. In the event of a conflict between the terms of this
Agreement and the terms of a Placement Notice (as amended by the corresponding Acceptance, if
applicable), the terms of the Placement Notice (as amended by the corresponding Acceptance, if
applicable) will control.
SECTION 3. Sale of Placement Securities by Xxxxx Fargo.
Subject to the provisions of Section 6(a), Xxxxx Fargo, for the period specified in the
Placement Notice (as amended by the corresponding Acceptance, if applicable), will use its
commercially reasonable efforts consistent with its normal trading and sales practices to sell the
Placement Securities up to the amount specified, and otherwise in accordance with the terms of such
Placement Notice (as amended by the corresponding Acceptance, if applicable). Xxxxx Fargo will
provide written confirmation to the Company no later than the opening of the Trading Day (as
defined below) immediately following the Trading Day on which it has made sales of Placement
Securities hereunder setting forth the number of Placement Securities sold on such day, the
compensation payable by the Company to Xxxxx Fargo pursuant to Section 2 with respect to such
sales, and the Net Proceeds (as defined below) payable to the Company, with an
3
itemization of the deductions made by Xxxxx Fargo (as set forth in Section 6(b)) from the
gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice (as
amended by the corresponding Acceptance, if applicable), Xxxxx Fargo may sell Placement Securities
by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of
the Securities Act, including without limitation sales made directly on the NYSE, on any other
existing trading market for the Common Shares or to or through a market maker. Subject to the
terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), Xxxxx
Fargo may also sell Placement Securities by any other method permitted by law, including but not
limited to in privately negotiated transactions. For the purposes hereof, “Trading Day”
means any day on which Common Shares are purchased and sold on the principal market on which the
Common Shares are listed or quoted.
SECTION 4. Suspension of Sales. The Company or Xxxxx Fargo may, upon notice to the other
party in writing (including by email correspondence to each of the individuals of the other party
set forth on Exhibit B, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone
(confirmed immediately by verifiable facsimile transmission or email correspondence to each of the
individuals of the other party set forth on Exhibit B), suspend any sale of Placement
Securities; provided, however, that such suspension shall not affect or impair
either party’s obligations with respect to any Placement Securities sold hereunder prior to the
receipt of such notice or any Placement Securities sold under the Alternative Distribution
Agreement. Each of the parties agrees that no such notice under this Section 4 shall be effective
against the other unless it is made to one of the individuals named on Exhibit B hereto, as
such Exhibit may be amended from time to time.
SECTION 5. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating Partnership. The Company
and the Operating Partnership each severally represents and warrants to Xxxxx Fargo as of the date
hereof and as of each Representation Date (as defined below) on which a certificate is required to
be delivered pursuant to Section 7(o) of this Agreement, as of each Applicable Time and as of each
Settlement Date (as defined below), and agrees with Xxxxx Fargo, as follows:
(1) Compliance with Registration Requirements. The Securities have been duly
registered under the Securities Act pursuant to the Registration Statement. The
Registration Statement has become effective under the Securities Act, or, with respect to
any registration statement to be filed to register the offer and sale of the Securities
pursuant to Rule 462(b) under the Securities Act (a “Rule 462(b) Registration
Statement”), will be filed with the Commission and become effective under the Securities
Act no later than 10:00 P.M., New York City time, on the date of determination of the public
offering price for the Securities, and no stop order preventing or suspending the use of any
base prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus (as defined below), or the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement and no proceedings for such purpose have been instituted
or are pending or, to the knowledge of the Company, are
4
contemplated by the Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became or becomes effective
and as of the date hereof, the Registration Statement, any Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the Securities Act. The Company meets the
eligibility requirements for use of a registration statement on Form S-3 in connection with
the offer and sale of the Securities hereunder. The Registration Statement meets, and the
offering and sale of the Securities as contemplated hereby complies with, the requirements
of Rule 415 under the Securities Act. The Registration Statement, as of the date hereof and
each effective date with respect thereto, did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, as of their respective dates, and at each Applicable Time
and Settlement Date, as the case may be, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
The representations and warranties set forth in the immediately preceding paragraph
shall not apply to statements in or omissions from the Registration Statement or the
Prospectus, as amended or supplemented, made in reliance upon and in conformity with
information furnished to the Company in writing by Xxxxx Fargo expressly for use therein.
The copies of the Registration Statement and any Rule 462(b) Registration Statement and
any amendments thereto, any other preliminary prospectus, each Issuer Free Writing
Prospectus that is required to be filed with the Commission pursuant to Rule 433 and the
Prospectus and any amendments or supplements thereto delivered and to be delivered to Xxxxx
Fargo (electronically or otherwise) in connection with the offering of the Securities were
and will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
Each Issuer Free Writing Prospectus relating to the Securities, as of its issue date
and as of each Applicable Time and Settlement Date, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement or the Prospectus, including any incorporated document deemed
to be a part thereof that has not been superseded or modified, or included, includes or will
include an untrue statement of a material fact or omitted, omits or will omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances, prevailing at that subsequent time, not misleading. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free Writing Prospectus based
upon and in conformity with written information furnished to the Company by Xxxxx Fargo
specifically for use therein.
5
At the time of the initial filing of the Registration Statement, at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and at the
date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405
of the Securities Act; and, without limitation to the foregoing, the Company has at all
relevant times met, meets and will at all relevant times meet the requirements of Rule 164
for the use of a free writing prospectus (as defined in Rule 405) in connection with the
offering contemplated hereby.
Each document incorporated by reference in the Registration Statement or the Prospectus
heretofore filed, when it was filed (or, if any amendment with respect to any such document
was filed, when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act, and any further documents so filed and incorporated after
the date of this Agreement will, when they are filed, conform in all material respects with
the requirements of the Exchange Act; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein not
misleading; and no such document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(2) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus at all relevant times are, were or have been
independent registered public accountants as required by the Securities Act and the Public
Company Accounting Oversight Board (United States) (“PCAOB”); and there have been no
disagreements with any accountants or “reportable events” (as defined in Item 304 of
Regulation S-K promulgated by the Commission), in either case as required to be disclosed in
the Prospectus or elsewhere pursuant to such Item 304.
(3) Financial Statements. The historical financial statements of the Company
included or incorporated by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company, its consolidated Subsidiaries (as
defined below) and the Operating Partnership as of the dates indicated and the results of
operations for the periods specified; the financial statements of any other entities or
businesses included or incorporated by reference in the Registration Statement or the
Prospectus present fairly in all material respects the financial position of each such
entity or business, as the case may be, and its consolidated subsidiaries (if any) at the
dates indicated and the results of operations for the periods specified; except as otherwise
stated in the Registration Statement and the Prospectus, said financial statements have been
prepared in conformity with generally accepted accounting principles in the United States
(“generally accepted accounting principles”) applied on a consistent basis and
comply with the applicable accounting requirements of the Securities Act (including, without
limitation, Rule 3-14 of Regulation S-X promulgated by the Commission), and all adjustments
necessary for a fair presentation of the results for such periods have been
6
made; the supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information required to be
stated therein; and the selected financial data (both historical and pro forma) included or
incorporated by reference in the Registration Statement and the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent with the related
financial statements presented therein; all “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) contained in the Registration
Statement or the Prospectus comply in all material respects with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent
applicable.
(4) Revenue and Expense Presentation; Pro Forma Financial Statements. The
historical summaries of revenue and certain operating expenses included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the revenue and
those operating expenses included in such summaries of the properties related thereto for
the periods specified in conformity with generally accepted accounting principles; the pro
forma consolidated financial statements included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the pro forma financial position of
the Company and its consolidated Subsidiaries as of the dates indicated and the results of
operations for the periods specified; and such pro forma financial statements have been
prepared in accordance with generally accepted accounting principles applied on a basis
consistent with the audited financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, the assumptions on which such
pro forma financial statements have been prepared are reasonable and are set forth in the
notes thereto, and such pro forma financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with the applicable
accounting requirements of the Securities Act (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have been properly applied to
the historical amounts in the compilation of such statements.
(5) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (a) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the
Company, and its Subsidiaries (“Subsidiaries,” as used in this Agreement, includes
consolidated corporations, partnerships and other entities, including, the Operating
Partnership, Colonial Properties Services Limited Partnership (the “Management
Partnership”) and Colonial Properties Services, Inc. (the “Management
Corporation”), and includes direct and indirect Subsidiaries, if any) considered as one
enterprise, or any of the real property or improvements thereon owned by either the Company
or any of its Subsidiaries (each individually a “Property” and collectively the
“Properties”), whether or not arising in the ordinary course of business, (b) no
casualty loss, condemnation or other adverse event with respect to the Properties, which
when considered together with all other such losses, condemnations or events, are material
to the Company and its Subsidiaries considered as one enterprise, has occurred, (c) there
have been no transactions entered into by the Company or any of its Subsidiaries, other than
those in the ordinary course of business, which are material with respect to the Company,
and its
7
Subsidiaries considered as one enterprise, and (d) except for regular quarterly
dividends on the Company’s Common Shares or dividends or distributions declared, paid or
made in accordance with the terms of any series of the Company’s Preferred Shares, there has
been no dividend or distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(6) Good Standing of the Company. 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 Alabama, with power and authority to own, lease and operate its Properties and to
conduct its business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Company is duly qualified to transact business and
is in good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise (a “Material
Adverse Effect”).
(7) Agreement of Limited Partnership; Good Standing of the Operating
Partnership. The Third Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, as amended and restated, has been duly and validly authorized,
executed and delivered by the Company, as general partner of the Operating Partnership, and
by the limited partners of the Operating Partnership and is a valid and binding agreement of
the Company and such limited partners of the Operating Partnership, enforceable in
accordance with its terms, except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors or (b) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought. The Operating
Partnership has been duly formed and is validly existing and is in good standing under the
laws of the State of Delaware, has power and authority to own, lease and operate its
Properties and to conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in good standing would
not have a Material Adverse Effect.
(8) Good Standing of Subsidiaries. Each Subsidiary of the Company has been
duly formed and is validly existing and in good standing under the laws of the jurisdiction
of its organization, has power and authority to own, lease and operate its Properties and to
conduct its business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing would not have a
Material Adverse Effect. Except as otherwise stated in the Prospectus, all of the issued
and outstanding capital stock or other ownership interests in each such Subsidiary have been
duly authorized and validly issued, are fully paid and non-
8
assessable and are owned by the Company, directly or through Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of the Company or any of its
Subsidiaries and described in the Prospectus; and none of the outstanding capital stock or
other ownership interests in such Subsidiary was issued in violation of any preemptive
rights, rights of first refusal or other similar rights of any securityholder of such
subsidiary or any other person.
(9) Partnership and Joint Venture Agreements. Each of the partnership and
joint venture agreements to which the Company or any of its Subsidiaries is a party has been
duly authorized, executed and delivered by the parties thereto and constitutes the valid
agreement thereof, enforceable in accordance with its terms, except as limited by (a) the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of creditors or (b) the
effect of general principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any proceeding therefor may
be brought; and the execution, delivery and performance of any of such agreements by the
Company or any of its Subsidiaries, as applicable, did not, at the time of execution and
delivery, and does not constitute a breach of, or default under, the charter, by-laws,
partnership agreement (or other organizational documents) of such party or any material
contract, lease or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or administrative or court
decree.
(10) Capitalization. The authorized, issued and outstanding capital shares of
the Company is as set forth in the Prospectus under “Description of Common Shares of
Beneficial Interest” (except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment or stock purchase plans, employee
and director stock option or restricted stock plans or upon the exercise of options or
convertible securities referred to in the Prospectus, including common shares issuable upon
redemption of limited partnership units in the Operating Partnership); and such shares have
been duly authorized and validly issued and are fully paid and non-assessable and are not
subject to preemptive or other similar rights.
(11) Authorization of Agreement by Company. The Company has full right, power
and authority under its organizational documents to enter into this Agreement and this
Agreement has been duly authorized, executed and delivered by the Company.
(12) Authorization of Agreement by Operating Partnership. The Operating
Partnership has full right, power and authority under its organizational documents to enter
into this Agreement and this Agreement has been duly authorized, executed and delivered by
the Operating Partnership.
(13) Authorization of Securities. The Securities to be sold by the Company
pursuant to this Agreement have been duly authorized by the Company, and such Securities
have been duly authorized for issuance and sale pursuant to this Agreement, and such
Securities, when issued and delivered by the Company pursuant to this
9
Agreement against payment of the consideration set forth herein, will be validly
issued, fully paid and non-assessable, and the issuance of the Securities will not be
subject to preemptive or other similar rights; the Securities being sold pursuant to this
Agreement conform in all material respects to all statements relating thereto contained in
the Prospectus. The certificates used by the Company to evidence the Securities are in valid
and sufficient form.
(14) Absence of Defaults and Conflicts. None of the Company or any of its
Subsidiaries is in violation of its charter, by-laws, partnership agreement or other
organizational documents or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of its Subsidiaries
is a party or by which it or any of them may be bound, or to which any of the property or
assets of the Company or any of its Subsidiaries is subject, except for any such violation
or default that would not have a Material Adverse Effect, and the execution, delivery and
performance of this Agreement the consummation of the transactions contemplated herein and
compliance by the Company and the Operating Partnership (with respect to this Agreement),
each severally, with obligations hereunder have been duly authorized by all necessary
corporate, trust or partnership action, and will not materially conflict with or constitute
a material breach of, or material default under, or result in the creation or imposition of
any material lien, charge or encumbrance upon any property or assets of the Company or any
of its Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its Subsidiaries is a party or by
which any of them may be bound, or to which any of the property or assets of the Company or
any of its Subsidiaries is subject, nor will such action result in any violation of the
charter, by-laws, the partnership agreement or other organizational documents of the Company
or any of its Subsidiaries, or any applicable law, administrative regulation or
administrative or court decree.
(15) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its Subsidiaries exists or, to the knowledge of the Company, is imminent,
which, in any such case, may reasonably be expected to result in a Material Adverse Effect.
(16) Absence of Proceedings. There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or any of its Subsidiaries threatened against or affecting the
Company or any of its Subsidiaries which is required to be disclosed in the Prospectus
(other than as disclosed therein), or which may reasonably be expected to result in a
Material Adverse Effect, or which may reasonably be expected to materially and adversely
affect the consummation of this Agreement or the transactions contemplated herein; all
pending legal or governmental proceedings to which the Company or any of its Subsidiaries is
a party or of which any property or assets of the Company or any of its Subsidiaries is
subject which are not described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not expected to result in a
Material Adverse Effect; and there are no contracts
10
or documents of the Company or any of its Subsidiaries which are required to be filed
as exhibits to the Registration Statement by the Securities Act which have not been so
filed.
(17) Accuracy of Descriptions and Exhibits. There are no contracts or
documents which are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as exhibits thereto, which
have not been so described and filed as required; and the statements in the Prospectus under
the headings “Description of Common Shares of Beneficial Interest,” “Material Federal Income
Tax Consequences” and “The Alabama Real Estate Investment Trust Act” insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements, documents or proceedings
in all material respects.
(18) Possession of Intellectual Property. The Company and its Subsidiaries own
or possess any trademarks, service marks, trade names or copyrights required in order to
conduct their respective businesses as described in the Prospectus, other than those the
failure to possess or own would not have a Material Adverse Effect.
(19) Absence of Further Requirements. No authorization, approval, permit or
consent of any court or governmental authority or agency is necessary in connection with the
consummation by the Company or the Operating Partnership of the transactions contemplated by
this Agreement, except such as have been obtained or as may be required under the Securities
Act, state securities laws, real estate syndication laws or under the rules and regulations
of FINRA.
(20) Possession of Authorizations and Permits. The Company and its
Subsidiaries possess such certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to conduct their
respective businesses as described in the Prospectus, other than those the failure to
possess or own would not have a Material Adverse Effect, and neither the Company nor any of
its Subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(21) Title to Property. Except as otherwise disclosed in the Prospectus and
except as would not have a Material Adverse Effect: (a) the Company or its Subsidiaries
have good and marketable title in fee simple to all real property and improvements described
in the Prospectus as being owned in fee; (b) all liens, charges, encumbrances, claims or
restrictions on or affecting the real property and improvements owned by the Company or any
of its Subsidiaries which are required to be disclosed in the Prospectus are disclosed
therein; (c) none of the Company or any of its Subsidiaries, or to the knowledge of the
Company, any lessee of any portion of the real property or improvements owned by the Company
or any of its Subsidiaries, is in default under any of the leases pursuant to which the
Company or any of its Subsidiaries leases such real property or improvements, and the
Company and its Subsidiaries know of no event which, but for the passage of time or the
giving of notice, or both, would constitute a
11
default under any of such leases; (d) all the real property and improvements owned by
the Company or its Subsidiaries comply with all applicable codes and zoning laws and
regulations; and (e) the Company and its Subsidiaries have no knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that would in any
manner affect the size of, use of, improvements on, construction on, or access to any of the
real property or improvements owned by the Company, any of its Subsidiaries or the Operating
Partnership.
(22) Investment Company Act. Neither the Company nor any of its Subsidiaries
is required to be registered as an “investment company” under the Investment Company Act of
1940, as amended (the “Investment Company Act”).
(23) Environmental Laws. Except as otherwise disclosed in the Prospectus, each
of the Company and the Operating Partnership has no knowledge of: (a) the unlawful presence
of any hazardous substances, hazardous materials, toxic substances or waste materials
(collectively, “Hazardous Materials”) on any of the Properties or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials that have occurred or are
presently occurring on or from the Properties as a result of any construction on or
operation and use of the Properties, which presence or occurrence would have a Material
Adverse Effect; and in connection with the construction on or operation and use of the
Properties, each of the Company, and the Operating Partnership has no knowledge of any
material failure to comply with all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of any Hazardous Materials
that could have a Material Adverse Effect.
(24) Absence of Registration Rights. There are no persons with registration or
other similar rights to have any securities registered pursuant to the Registration
Statement.
(25) NYSE. The outstanding Common Shares and the Securities to be sold by the
Company hereunder have been approved for listing, subject only to official notice of
issuance, on the NYSE, and are registered pursuant to Section 12(b) of the Exchange Act, and
the Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the Securities under the Exchange Act or delisting any such securities
from the NYSE, nor has the Company received any notification that the Commission or the NYSE
is contemplating terminating such registration or listing.
(26) Tax Returns. The Company and its Subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or have requested
extensions thereof, except where the failure so to file would not, individually or in the
aggregate, have a Material Adverse Effect, and have paid all taxes required to be paid by
them and any other assessment, fine or penalty levied against any of them, to the extent
that any of the foregoing is due and payable, except for any such tax, assessment, fine or
penalty that is currently being contested in good faith by appropriate actions and except
for such taxes, assessments, fines or penalties the nonpayment of which would not,
individually or in the aggregate, have a Material Adverse Effect.
12
(27) Insurance. The Company or its Subsidiaries has adequate title insurance
on each Property owned in fee by the Company or its Subsidiaries.
(28) Accounting Controls and Disclosure Controls. The Company and its
Subsidiaries maintain and have maintained effective internal control over financial
reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal
accounting controls sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management’s general or specific authorizations, (B)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (C) access to assets is permitted
only in accordance with management’s general or specific authorization, and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the
Prospectus, since the end of the Company’s most recent audited fiscal year, to the knowledge
of the Company there has been (1) no material weakness in the Company’s internal control
over financial reporting (whether or not remediated) and (2) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting. The
Company and its subsidiaries employ and have employed disclosure controls and procedures as
defined in Rule 13a-15 under the Exchange Act that are designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods
specified in the Commission’s rules and forms, and is accumulated and communicated to the
Company’s management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
(29) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no failure
on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, materially to comply with any provision of the Xxxxxxxx-Xxxxx Act with
which any of them is required to comply, including Section 402 related to loans and Sections
302 and 906 related to certifications.
(30) Permitted Free Writing Prospectus. Neither the Company nor any of its
Subsidiaries has distributed or will distribute any offering material in connection with the
offering and sale of the Securities to be sold hereunder by Xxxxx Fargo as principal or
agent for the Company, other than the Prospectus and any Permitted Free Writing Prospectus
reviewed and consented to by Xxxxx Fargo.
(31) Actively Traded Security. The Common Shares are “actively traded
securities” excepted from the requirements of Rule 101 of Regulation M under the Exchange
Act by subsection (c)(1) of such rule.
(32) Absence of Manipulation. Neither the Company nor any of its Subsidiaries,
nor any of the officers, directors, trustees or partners thereof has taken, nor will any of
them take, directly or indirectly, any action resulting in a violation of Regulation M under
the Exchange Act or designed to cause or result in, or which has
13
constituted or which reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Securities or facilitation of the sale or resale of the
Securities.
(33) REIT Status. The Company has qualified as a real estate investment trust
(“REIT”) for its taxable years ended December 31, 1996, December 31, 1997, December
31, 1998, December 31, 1999, December 31, 2000, December 31, 2001, December 31, 2002,
December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, December 31,
2007, December 31, 2008 and December 31, 2009, and the Company is organized and operates in
a manner that will enable it to continue to qualify to be taxed as a REIT under the Internal
Revenue Code of 1986, as amended (the “Code”) for the taxable year ending December
31, 2010 and thereafter.
(34) Foreign Corrupt Practices Act. Neither the Company nor any of its
Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or any of its Subsidiaries is
aware of or has taken any action, directly or indirectly, that has resulted or would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (collectively, the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA, and the Company and its subsidiaries and, to the
knowledge of the Company, its other affiliates have conducted their businesses in compliance
with the FCPA and have instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued compliance therewith.
(35) Money Laundering Laws. The operations of the Company and its Subsidiaries
are in all material respects in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar applicable rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively,
“Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened.
(36) OFAC. Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or person acting
on behalf of the Company or any of its Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not knowingly directly or indirectly use
any of the proceeds received by the Company from the sale of Securities contemplated by
14
this Agreement, or lend, contribute or otherwise make available any such proceeds to
any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(37) Lending Relationship. Except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor any of its Subsidiaries has any outstanding
borrowings from, or is a party to any line of credit, credit agreement or other credit
facility or otherwise has a borrowing relationship with, any bank or other lending
institution affiliated with Xxxxx Fargo, and the Company does not intend to use any of the
proceeds from the sale of the Securities to repay any debt owed to Xxxxx Fargo or any
affiliate thereof.
(38) Transfer Taxes. There are no stock or other transfer taxes, stamp duties,
capital duties or other similar duties, taxes or charges payable in connection with the
execution or delivery of this Agreement by the Company and the Operating Partnership or the
issuance or sale by the Company of the Securities to be sold by the Company to Xxxxx Fargo
hereunder.
(39) Related Party Transactions. There are no business relationships or
related party transactions involving the Company or any of its Subsidiaries or, to the
knowledge of the Company, any other person that are required to be described in the
Prospectus pursuant to Item 404 of Regulation S-K that have not been described as required.
(40) ERISA. (i) Each “employee benefit plan” (within the meaning of Section
3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”)), for
which the Company or any member of its “Controlled Group” (defined as an
organization which is a member of a controlled group of corporations within the meaning of
Section 414 of the Code) would have any liability (each a “Plan”) has been
maintained in material compliance with its terms and with the requirements of all applicable
statutes, rules and regulations including ERISA and the Code; (ii) with respect to each Plan
subject to Title IV of ERISA (a) no “reportable event” (within the meaning of Section
4043(c) of ERISA) has occurred or is reasonably expected to occur, (b) no “accumulated
funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code),
whether or not waived, has occurred or is reasonably expected to occur, (c) the fair market
value of the assets under each Plan exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan) and (d) neither the
Company or any member of its Controlled Group has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA (other than contributions to the Plan or premiums to
the Pension Benefit Guaranty Corporation in the ordinary course and without default) in
respect of a Plan (including a “multiemployer plan,” within the meaning of Section
4001(c)(3) of ERISA); and (iii) each Plan that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such qualification.
(41) No Other Contracts. Other than this Agreement, there are no contracts,
agreements or understandings between the Company or any of its Subsidiaries and any
15
person that would give rise to a valid claim against the Company or any of its
Subsidiaries or Xxxxx Fargo for a brokerage commission, finder’s fee or other like payment
with respect to the consummation of the transactions contemplated by this Agreement.
(42) Proprietary Trading by Xxxxx Fargo. The Company acknowledges and agrees
that Xxxxx Fargo has informed the Company that Xxxxx Fargo may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Shares for its own
account while this Agreement is in effect, and shall be under no obligation to purchase
Securities on a principal basis pursuant to this Agreement, except as otherwise agreed by
Xxxxx Fargo in the Placement Notice (as amended by the corresponding Acceptance, if
applicable); provided, that no such purchase or sales shall take place while a Placement
Notice is in effect (except (i) as agreed by Xxxxx Fargo in the Placement Notice (as amended
by the corresponding Acceptance, if applicable) or (ii) to the extent Xxxxx Fargo may engage
in sales of Placement Securities purchased or deemed purchased from the Company as a
“riskless principal” or in a similar capacity).
(43) FINRA Matters. All of the information provided to Xxxxx Fargo or to
counsel for Xxxxx Fargo by the Company and, to the knowledge of the Company, its officers
and directors and the holders of any securities of the Company in connection with letters,
filings or other supplemental information provided to FINRA pursuant to FINRA Conduct Rule
2710 or 2720 is true, complete and correct.
(44) No Prohibition on Dividends by Subsidiaries. Except as described in the
Prospectus, no Subsidiary of the Company is prohibited, directly or indirectly, from paying
any dividends or making any other distributions on such Subsidiary’s capital stock, from
repaying any debt owed to the Company or any of its other Subsidiaries, or from transferring
any of its property or assets to the Company or any of its other subsidiaries, other than
any restrictions that would not have a Material Adverse Effect.
(b) Certificates. Any certificate signed by any officer of the Company or the Operating
Partnership and delivered to Xxxxx Fargo or to counsel for Xxxxx Fargo shall be deemed a
representation and warranty by the Company and the Operating Partnership, as the case may be, to
Xxxxx Fargo as to the matters covered thereby.
SECTION 6. Sale and Delivery to Xxxxx Fargo; Settlement.
(a) Sale of Placement Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, upon Xxxxx Fargo’s acceptance
of the terms of a Placement Notice or upon receipt by Xxxxx Fargo of an Acceptance, as the case may
be, and unless the sale of the Placement Securities described therein has been declined, suspended,
or otherwise terminated in accordance with the terms of this Agreement, Xxxxx Fargo, for the period
specified in the Placement Notice (as amended by the corresponding Acceptance, if applicable), will
use its commercially reasonable efforts consistent with its normal trading and sales practices to
sell such Placement Securities up to the amount specified, and otherwise in accordance with the
terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). Each
of the Company and the Operating Partnership
16
acknowledges and agrees that (i) there can be no assurance that Xxxxx Fargo will be successful
in selling Placement Securities, (ii) Xxxxx Fargo will incur no liability or obligation to the
Company, the Operating Partnership or any other person or entity if it does not sell Placement
Securities for any reason other than a failure by Xxxxx Fargo to use its commercially reasonable
efforts consistent with its normal trading and sales practices to sell such Placement Securities as
required under this Section 6 and (iii) Xxxxx Fargo shall be under no obligation to purchase
Securities on a principal basis pursuant to this Agreement, except as otherwise agreed by Xxxxx
Fargo in the Placement Notice (as amended by the corresponding Acceptance, if applicable).
(b) Settlement of Placement Securities. Unless otherwise specified in the applicable
Placement Notice (as amended by the corresponding Acceptance, if applicable), settlement for sales
of Placement Securities will occur on the third (3rd) Trading Day (or such earlier day
as is industry practice for regular-way trading) following the date on which such sales are made
(each, a “Settlement Date”). The amount of proceeds to be delivered to the Company on a
Settlement Date against receipt of the Placement Securities sold (the “Net Proceeds”) will
be equal to the aggregate offering price received by Xxxxx Fargo at which such Placement Securities
were sold, after deduction for (i) Xxxxx Fargo’s commission, discount or other compensation for
such sales payable by the Company pursuant to Section 2 hereof, (ii) any other amounts due and
payable by the Company to Xxxxx Fargo hereunder pursuant to Section 8(a) hereof, and (iii) any
transaction fees imposed by any governmental or self-regulatory organization in respect of such
sales.
(c) Delivery of Placement Securities. On or before each Settlement Date, the Company will, or
will cause its transfer agent to, electronically transfer the Placement Securities being sold by
crediting Xxxxx Fargo’s or its designee’s account (provided Xxxxx Fargo shall have given the
Company written notice of such designee prior to the Settlement Date) at The Depository Trust
Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery
as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, Xxxxx Fargo
will deliver the related Net Proceeds in same day funds to an account designated by the Company
prior to the Settlement Date. The Company agrees that if the Company, or its transfer agent (if
applicable), defaults in its obligation to deliver Placement Securities on a Settlement Date, the
Company agrees that in addition to and in no way limiting the rights and obligations set forth in
Section 10(a) and Section 11 hereto, it will (i) hold Xxxxx Fargo harmless against any loss,
liability, claim, damage, or expense whatsoever (including reasonable legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company or its transfer agent
(if applicable) and (ii) pay to Xxxxx Fargo any commission, discount, or other compensation to
which it would otherwise have been entitled absent such default.
(d) Denominations; Registration. The Securities shall be in such denominations and registered
in such names as Xxxxx Fargo may request in writing at least one full business day before the
Settlement Date. The Company shall deliver the Securities, if any, through the facilities of The
Depository Trust Company unless Xxxxx Fargo shall otherwise instruct.
17
(e) Limitations on Offering Size. Under no circumstances shall the Company cause or request
the offer or sale of any Securities, if after giving effect to the sale of such Securities, the
aggregate offering price of the Securities sold pursuant to this Agreement would exceed the lesser
of (A) together with all sales of Securities under this Agreement and the Alternative Distribution
Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement, (C) the amount authorized from time to time to be issued and sold
under this Agreement by the Company and notified to Xxxxx Fargo in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Securities pursuant to this Agreement
at a price lower than the minimum price authorized from time to time by the Company and notified to
Xxxxx Fargo in writing. Further, under no circumstances shall the aggregate offering price of
Securities sold pursuant to this Agreement and the Alternative Distribution Agreement, including
any separate underwriting or similar agreement covering principal transactions described in Section
1 of this Agreement and the Alternative Distribution Agreement, exceed the Maximum Amount.
(f) Limitation on Managers. The Company agrees that any offer to sell, any solicitation of an
offer to buy or any sales of Securities shall only be effected by or through only one of Xxxxx
Fargo or the Alternative Manager on any single given day, but in no event more than one, and the
Company shall in no event request that Xxxxx Fargo and the Alternative Manager sell Securities on
the same day; provided, however, that (a) the foregoing limitation shall not apply
to (i) exercise of any option, warrant, right or any conversion privilege set forth in the
instrument governing such security or (ii) sales solely to employees or security holders of the
Company or its Subsidiaries, or to a trustee or other person acquiring such securities for the
accounts of such persons, and (b) such limitation shall not apply on any day during which no sales
are made pursuant to this Agreement.
SECTION 7. Covenants of the Company and the Operating Partnership. Each of the
Company and the Operating Partnership covenants with Xxxxx Fargo as follows:
(a) Registration Statement Amendments. After the date of this Agreement and during any period
in which a Prospectus relating to any Placement Securities is required to be delivered by Xxxxx
Fargo under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), (i) the Company will notify Xxxxx Fargo promptly of
the time when any subsequent amendment to the Registration Statement, other than documents
incorporated by reference, has been filed with the Commission and/or has become effective or any
subsequent supplement to the Prospectus has been filed and of any comment letter from the
Commission or any request by the Commission for any amendment or supplement to the Registration
Statement or Prospectus or for additional information; (ii) the Company will prepare and file with
the Commission, promptly upon Xxxxx Fargo’s request, any amendments or supplements to the
Registration Statement or Prospectus that, in Xxxxx Fargo’s reasonable opinion, may be necessary or
advisable in connection with the distribution of the Placement Securities by Xxxxx Fargo
(provided, however, that the failure of Xxxxx Fargo to make such request shall not
relieve the Company of any obligation or liability hereunder, or affect Xxxxx Fargo’s right to rely
on the representations and warranties made by the Company in this Agreement); (iii) the Company
will not file any amendment or supplement to the Registration Statement or Prospectus, other than
documents incorporated by reference, relating to the Placement Securities or a security convertible
into the Placement Securities unless
18
a copy thereof has been submitted to Xxxxx Fargo within a reasonable period of time before the
filing and Xxxxx Fargo has not reasonably objected thereto (provided, however, that
the failure of Xxxxx Fargo to make such objection shall not relieve the Company of any obligation
or liability hereunder, or affect Xxxxx Fargo’s right to rely on the representations and warranties
made by the Company in this Agreement) and the Company will furnish to Xxxxx Fargo at the time of
filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via XXXXX; and
(iv) the Company will cause each amendment or supplement to the Prospectus, other than documents
incorporated by reference, to be filed with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the
Securities Act).
(b) Notice of Commission Stop Orders. The Company will advise Xxxxx Fargo, promptly after it
receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any
other order preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus, or of the suspension of the qualification of the Placement Securities for offering or
sale in any jurisdiction or of the loss or suspension of any exemption from any such qualification,
or of the initiation or threatening of any proceedings for any of such purposes, or of any
examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement or
if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Securities. The Company will make every reasonable effort to
prevent the issuance of any stop order, the suspension of any qualification of the Securities for
offering or sale and any loss or suspension of any exemption from any such qualification, and if
any such stop order is issued or any such suspension or loss occurs, to obtain the lifting thereof
at the earliest possible moment.
(c) Delivery of Registration Statement and Prospectus. The Company will furnish to Xxxxx
Fargo and its counsel (at the expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus, and any Issuer Free Writing Prospectuses,
that are filed with the Commission during any period in which a Prospectus relating to the
Placement Securities is required to be delivered under the Securities Act (including all documents
filed with the Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as reasonably practicable and in such quantities and at such
locations as Xxxxx Fargo may from time to time reasonably request. The copies of the Registration
Statement and the Prospectus and any supplements or amendments thereto furnished to Xxxxx Fargo
will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Continued Compliance with Securities Laws. If at any time when a Prospectus is required
by the Securities Act or the Exchange Act to be delivered in connection with a pending sale of the
Placement Securities (including, without limitation, pursuant to Rule 172), any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of counsel for Xxxxx
Fargo or for the Company, to amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include any untrue statement of a
19
material fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to comply with the
requirements of the Securities Act, the Company will promptly notify Xxxxx Fargo to suspend the
offering of Placement Securities during such period and the Company will promptly prepare and file
with the Commission such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to Xxxxx Fargo such number of copies of such amendment or supplement as
Xxxxx Fargo may reasonably request. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted, conflicts or would conflict with the information contained in the
Registration Statement or the Prospectus or included, includes or would include an untrue statement
of a material fact or omitted, omits or would omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances, prevailing at that subsequent time,
not misleading, the Company will promptly notify Xxxxx Fargo to suspend the offering of Placement
Securities during such period and the Company will, subject to Section 7(a) hereof, promptly amend
or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(e) Blue Sky and Other Qualifications. The Company will use its commercially reasonable
efforts, in cooperation with Xxxxx Fargo, to qualify the Placement Securities for offering and
sale, or to obtain an exemption for the Securities to be offered and sold, under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as Xxxxx Fargo may
designate and to maintain such qualifications and exemptions in effect for so long as required for
the distribution of the Securities (but in no event for less than one year from the date of this
Agreement); provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Placement Securities have been so qualified or exempt, the Company will
file such statements and reports as may be required by the laws of such jurisdiction to continue
such qualification or exemption, as the case may be, in effect for so long as required for the
distribution of the Placement Securities (but in no event for less than one year from the date of
this Agreement).
(f) Rule 158. The Company will timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide to Xxxxx Fargo the benefits contemplated by,
the last paragraph of Section 11(a) of the Securities Act.
(g) Use of Proceeds. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(h) Listing. During any period in which the Prospectus relating to the Placement Securities
is required to be delivered by Xxxxx Fargo under the Securities Act with respect to a pending sale
of the Placement Securities (including in circumstances where such requirement
20
may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its
commercially reasonable efforts to cause the Placement Securities to be listed on the NYSE.
(i) Filings with the NYSE. The Company will timely file with the NYSE all material documents
and notices required by the NYSE of companies that have or will issue securities that are traded on
the NYSE.
(j) Reporting Requirements. The Company, during any period when the Prospectus is required to
be delivered under the Securities Act and the Exchange Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), will file all
documents required to be filed with the Commission pursuant to the Exchange Act within the time
periods required by the Exchange Act.
(k) Notice of Other Sales. During the pendency of any Placement Notice (as amended by the
corresponding Acceptance, if applicable) given hereunder, the Company shall provide Xxxxx Fargo
notice as promptly as reasonably possible before it offers to sell, contracts to sell, sells,
grants any option to sell or otherwise disposes of any Common Shares (other than Placement
Securities offered pursuant to the provisions of this Agreement or the Alternative Distribution
Agreement) or securities convertible into or exchangeable for Common Shares, warrants or any rights
to purchase or acquire Common Shares; provided, that such notice shall not be required in
connection with the (i) issuance, grant or sale of Common Shares, options to purchase Common Shares
or Common Shares issuable upon the exercise of options or other equity awards pursuant to any stock
option, stock bonus or other stock or compensatory plan or arrangement described in the Prospectus,
including Common Shares issuable upon redemption of limited partnership units in the Operating
Partnership, (ii) the issuance of securities in connection with an acquisition, merger or sale or
purchase of assets described in the Prospectus, or (iii) the issuance or sale of Common Shares
pursuant to any dividend reinvestment plan that the Company may adopt from time to time, provided
the implementation of such is disclosed to Xxxxx Fargo in advance.
(l) Change of Circumstances. The Company will, at any time during a fiscal quarter in which
the Company intends to tender a Placement Notice or sell Placement Securities, advise Xxxxx Fargo
promptly after it shall have received notice or obtained knowledge thereof, of any information or
fact that would alter or affect in any material respect any opinion, certificate, letter or other
document provided to Xxxxx Fargo pursuant to this Agreement.
(m) Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence
review conducted by Xxxxx Fargo or its agents in connection with the transactions contemplated
hereby, including, without limitation, providing information and making available documents and
senior officers, during regular business hours and at the Company’s principal offices, as Xxxxx
Fargo may reasonably request.
(n) Disclosure of Sales. The Company will disclose in its quarterly reports on Form 10-Q, in
its annual report on Form 10-K and/or in a Current Report on Form 8-K, the number of Placement
Securities sold through Xxxxx Fargo, the Net Proceeds to the Company and the compensation payable
by the Company to Xxxxx Fargo with respect to such Placement Securities.
21
(o) Representation Dates; Certificates. On or prior to the date that the first
Securities are sold pursuant to the terms of this Agreement and:
(1) each time the Company:
(i) | files the Prospectus relating to the Placement Securities or amends or supplements the Registration Statement or the Prospectus relating to the Placement Securities by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Placement Securities; | ||
(ii) | files an annual report on Form 10-K under the Exchange Act; | ||
(iii) | files a quarterly report on Form 10-Q under the Exchange Act; or | ||
(iv) | files a report on Form 8-K containing amended financial information (other than an earnings release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K) under the Exchange Act; and |
(2) at any other time reasonably requested by Xxxxx Fargo (each such date of filing of one
or more of the documents referred to in clauses (1)(i) through (iv) and any time of request
pursuant to this Section 7(o) shall be a “Representation Date”),
the Company shall furnish Xxxxx Fargo with a certificate, in the form attached hereto as
Exhibit E within three (3) Trading Days of any Representation Date. The requirement to
provide a certificate under this Section 7(o) shall be waived for any Representation Date occurring
at a time at which no Placement Notice (as amended by the corresponding Acceptance, if applicable)
is pending, which waiver shall continue until the earlier to occur of the date the Company delivers
a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date; provided, however, that such
waiver shall not apply for any Representation Date on which the Company files its annual report on
Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement
Securities following a Representation Date when the Company relied on such waiver and did not
provide Xxxxx Fargo with a certificate under this Section 7(o), then before the Company delivers
the Placement Notice or Xxxxx Fargo sells any Placement Securities, the Company shall provide Xxxxx
Fargo with a certificate, in the form attached hereto as Exhibit E, dated the date of the
Placement Notice.
(p) Legal Opinions. On or prior to the date that the first Securities are sold pursuant to
the terms of this Agreement, within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit E for which no waiver is applicable, the Company shall cause to be furnished to
Xxxxx Fargo written opinions of Xxxxx Lovells US LLP, Leitman, Siegal, Xxxxx & Xxxxxxxx, P.C. and
Sirote & Permutt, P.C. (collectively, “Company Counsel”), or other counsel satisfactory to
Xxxxx Fargo, in form and substance satisfactory to Xxxxx Fargo and its counsel, dated the date that
the opinion is required to be delivered, substantially similar to the forms attached hereto as
Exhibit D-1, Exhibit D-2 and Exhibit D-3, modified, as necessary, to relate
to the Registration Statement
22
and the Prospectus as then amended or supplemented; provided, however, that in
lieu of such opinions for subsequent Representation Dates, any such counsel may furnish Xxxxx Fargo
with a letter (a “Reliance Letter”) to the effect that Xxxxx Fargo may rely on a prior
opinion delivered under this Section 7(p) to the same extent as if it were dated the date of such
letter (except that statements in such prior opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented at such Representation Date).
(q) Comfort Letter. On or prior to the date that the first Securities are sold pursuant to
the terms of this Agreement, within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit E for which no waiver is applicable, the Company shall cause its independent
accountants to furnish Xxxxx Fargo letters (the “Comfort Letters”), dated the date the
Comfort Letter is delivered, in form and substance satisfactory to Xxxxx Fargo, (i) confirming that
they are an independent registered public accounting firm within the meaning of the Securities Act,
the Exchange Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’
“comfort letters” to underwriters in connection with registered public offerings (the first such
letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with
any information that would have been included in the Initial Comfort Letter had it been given on
such date and modified as necessary to relate to the Registration Statement and the Prospectus, as
amended and supplemented to the date of such letter.
(r) Market Activities. The Company will not, directly or indirectly, (i) take any action
designed to cause or result in, or that constitutes or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities or (ii) sell, bid for, or purchase the Securities to be issued and
sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the
Securities to be issued and sold pursuant to this Agreement other than Xxxxx Fargo;
provided, however, that the Company may bid for and purchase its Common Shares in
accordance with Rule 10b-18 under the Exchange Act, and provided further, that no such bids or
purchases shall be made by the Company during the three (3) Trading Days before or after any sale of any
Securities pursuant to this Agreement.
(s) Insurance. The Company and its Subsidiaries shall maintain, or caused to be maintained,
insurance in such amounts and covering such risks as is reasonable and customary for companies
engaged in similar businesses in similar industries.
(t) Compliance with Laws. The Company and each of its subsidiaries shall maintain, or cause
to be maintained, all material environmental permits, licenses and other authorizations required by
federal, state and local law in order to conduct their businesses as described in the Prospectus,
and the Company and each of its subsidiaries shall conduct their businesses, or cause their
businesses to be conducted, in substantial compliance with such permits, licenses and
authorizations and with applicable environmental laws, except where the failure to maintain or be
in compliance with such permits, licenses and authorizations could not reasonably be expected to
have a Material Adverse Effect.
23
(u) Investment Company Act. The Company will conduct its affairs in such a manner so as to
reasonably ensure that neither it nor any of its Subsidiaries will be or become, at any time prior
to the termination of this Agreement, required to register as an “investment company,” as such term
is defined in the Investment Company Act, assuming no change in the Commission’s current
interpretation as to entities that are not considered an investment company.
(v) Securities Act and Exchange Act. The Company will use its best efforts to comply with all
requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in
force, so far as necessary to permit the continuance of sales of, or dealings in, the Placement
Securities as contemplated by the provisions hereof and the Prospectus.
(w) No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the
Securities Act) approved in advance in writing by the Company and Xxxxx Fargo in its capacity as
principal or agent hereunder, the Company (including its agents and representatives, other than
Xxxxx Fargo in its capacity as such) will not, directly or indirectly, make, use, prepare,
authorize, approve or refer to any free writing prospectus relating to the Securities to be sold by
Xxxxx Fargo as principal or agent hereunder.
(x) Xxxxxxxx-Xxxxx Act. The Company and its subsidiaries shall comply in all material
respects with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002.
(y) Regulation M. If the Company has reason to believe that the exemptive provisions set
forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to
the Company or the Common Shares, it shall promptly notify Xxxxx Fargo and sales of the Placement
Securities under this Agreement shall be suspended until that or other exemptive provisions have
been satisfied in the judgment of each party.
(z) REIT Treatment. The Company will use its best efforts to meet the requirements to qualify
as a “real estate investment trust” under the Code for any taxable years that include any portion
of the term of this Agreement.
SECTION 8. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as originally filed and of
each amendment and supplement thereto, (ii) the word processing, printing and delivery to Xxxxx
Fargo of this Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement Securities, (iii) the preparation,
issuance and delivery of the certificates for the Placement Securities to Xxxxx Fargo, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes
payable upon the sale, issuance or delivery of the Placement Securities to Xxxxx Fargo, (iv) the
fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the
qualification or exemption of the Placement Securities under securities laws in accordance with the
provisions of Section 7(e) hereof, including filing fees and the reasonable fees and disbursements
of counsel for Xxxxx Fargo in connection therewith and in connection with the
24
preparation of a state securities law or “blue sky” survey and any supplements thereto, (vi)
the printing and delivery to Xxxxx Fargo of copies of any Permitted Free Writing Prospectus and the
Prospectus and any amendments or supplements thereto and any costs associated with electronic
delivery of any of the foregoing by Xxxxx Fargo to investors, (vii) the preparation, printing and
delivery to Xxxxx Fargo of copies of the Blue Sky Survey and any Canadian “wrapper” and any
supplements thereto, (viii) the fees and expenses of the Custodian and the transfer agent and
registrar for the Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to Xxxxx Fargo in connection with, the review by FINRA of the terms of the
sale of the Securities, (x) the fees and expenses incurred in connection with the listing of the
Placement Securities on the NYSE, (xi) the disbursements of counsel for Xxxxx Fargo in connection
with the copying and delivery of closing documents delivered by the Company or the Company’s
accountants or counsel (including any local counsel) and (xii) if Securities having an aggregate
offering price of $16,500,000.00 or more have not been offered and sold under this Agreement and/or
the Alternative Distribution Agreement by the one-year anniversary of this Agreement (or such
earlier date at which the Company terminates this Agreement) (the “Determination Date”),
the Company shall reimburse Xxxxx Fargo for all of its reasonable out-of-pocket expenses, including
the reasonable fees and disbursements of a single counsel for both of Xxxxx Fargo and the
Alternative Manager incurred by Xxxxx Fargo in connection with the transactions contemplated by
this Agreement (the “Xxxxx Fargo Expenses,” and together with the similar expenses incurred
by the Alternative Manager as defined in the Alternative Distribution Agreement, the
“Expenses”). The Expenses shall be divided among Xxxxx Fargo and the Alternative Manager
in amounts proportionate to the aggregate offering price of Securities sold by Xxxxx Fargo and the
Alternative Manager under this Agreement and the Alternative Distribution Agreement, after taking
into account the amount of Expenses actually paid by Xxxxx Fargo and the Alternative Manager. The
Xxxxx Fargo Expenses shall be due and payable by the Company to Xxxxx Fargo within five (5)
business days of the Determination Date.
(b) Termination of Agreement. If this Agreement is terminated by Xxxxx Fargo in accordance
with the provisions of Section 9 or Section 13(a)(i) hereof, the Company shall reimburse Xxxxx
Fargo for all of its out-of-pocket expenses, including the reasonable fees and disbursements of a
single counsel for both of Xxxxx Fargo and the Alternative Manager, unless Securities having an
aggregate offering price of $16,500,000 or more have previously been offered and sold under this
Agreement and/or the Alternative Distribution Agreement.
SECTION 9. Conditions of Xxxxx Fargo’s Obligations. The obligations of Xxxxx Fargo
hereunder with respect to a Placement will be subject to the continuing accuracy and completeness
of the representations and warranties of the Company and the Operating Partnership contained in
this Agreement or in certificates of any officer of the Company, the Operating Partnership or any
Subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement and any Rule
462(b) Registration Statement shall have become effective and shall be available for (i) all
sales of Placement Securities issued pursuant to all prior Placement Notices (each as
amended by a corresponding Acceptance, if applicable) and (ii) the sale
25
of all Placement Securities contemplated to be issued by any Placement Notice (as
amended by the corresponding Acceptance, if applicable).
(b) No Material Notices. None of the following events shall have occurred and be
continuing: (i) receipt by the Company or any of its subsidiaries of any request for
additional information from the Commission or any other federal or state governmental
authority during the period of effectiveness of the Registration Statement, the response to
which would require any post-effective amendments or supplements to the Registration
Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt
by the Company of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Placement Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of
any event that makes any material statement made in the Registration Statement or the
Prospectus, or any Issuer Free Writing Prospectus, or any material document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or that
requires the making of any changes in the Registration Statement, related Prospectus, or any
Issuer Free Writing Prospectus, or such documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements
therein not misleading and, that in the case of the Prospectus and any Issuer Free Writing
Prospectus, it will not contain any materially untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(c) No Misstatement or Material Omission. Xxxxx Fargo shall not have advised the
Company that the Registration Statement or Prospectus, or any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact
that in Xxxxx Fargo’s opinion is material, or omits to state a fact that in Xxxxx Fargo’s
opinion is material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) Material Changes. Except as contemplated in the Prospectus, or disclosed in the
Company’s reports filed with the Commission, there shall not have been any material adverse
change the condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise.
(e) Opinion of Counsel for Company. Xxxxx Fargo shall have received the favorable
opinion of Company Counsel, required to be delivered pursuant to Section 7(p) on or before
the date on which such delivery of such opinion is required pursuant to Section 7(p).
26
(f) Representation Certificate. Xxxxx Fargo shall have received the certificate
required to be delivered pursuant to Section 7(o) on or before the date on which delivery of
such certificate is required pursuant to Section 7(o).
(g) Accountant’s Comfort Letter. Xxxxx Fargo shall have received the Comfort Letter
required to be delivered pursuant Section 7(q) on or before the date on which such delivery
of such opinion is required pursuant to Section 7(q).
(h) Approval for Listing. The Placement Securities shall either have been (i) approved
for listing on NYSE, subject only to notice of issuance, or (ii) the Company shall have
filed an application for listing of the Placement Securities on NYSE at, or prior to, the
issuance of any Placement Notice.
(i) No Suspension. Trading in the Securities shall not have been suspended on the
NYSE.
(j) Additional Documents. On each date on which the Company is required to deliver a
certificate pursuant to Section 7(o), counsel for Xxxxx Fargo shall have been furnished with
such documents and opinions as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of any of the
conditions, contained in this Agreement.
(k) Securities Act Filings Made. All filings with the Commission required by Rule 424
under the Securities Act to have been filed prior to the issuance of any Placement Notice
hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(l) Termination of Agreement. If any condition specified in this Section 9 shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be terminated
by Xxxxx Fargo by notice to the Company, and such termination shall be without liability of
any party to any other party except as provided in Section 8 hereof and except that, in the
case of any termination of this Agreement, Sections 5, 10, 11, 12 and 21 hereof shall
survive such termination and remain in full force and effect.
SECTION 10. Indemnification.
(a) Indemnification by the Company. The Company and the Operating Partnership, jointly and
severally, agree to indemnify and hold harmless Xxxxx Fargo and each person, if any, who controls
Xxxxx Fargo within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact included in any Issuer Free Writing Prospectus
27
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 10(d) below) any
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxx Fargo), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by Xxxxx Fargo expressly for use in the Registration Statement
(or any amendment thereto), or in any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification by Xxxxx Fargo. Xxxxx Fargo agrees to indemnify and hold harmless the
Company, the Operating Partnership, the trustees of the Company, each of the officers who signed
the Registration Statement, and each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section 10, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by Xxxxx Fargo expressly for use therein.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action. If it so elects within a
reasonable time after receipt of notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of such action with
28
counsel chosen by it and approved by the indemnified parties defendant in such action, unless
such indemnified parties reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for Xxxxx Fargo and each person, if any, who controls Xxxxx Fargo
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the
fees and expenses of more than one counsel (in addition to any local counsel) separate from their
own counsel for the Company, the Operating Partnership, the trustees of the Company, each of the
officers who signed the Registration Statement, and each person, if any, who controls the Company
or the Operating Partnership within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, in each case in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances. Notwithstanding the election of the indemnifying parties to assume the defense of
such litigation or proceeding, the indemnified parties shall have the right to employ separate
counsel and to participate in the defense of such litigation or proceeding, and the indemnifying
parties shall bear the reasonable fees, costs and expenses of such separate counsel (provided that
with respect to any single litigation or proceeding or with respect to several litigations or
proceedings involving substantially similar legal claims, the indemnifying parties shall not be
required to bear the fees, costs and expenses of more than one such counsel in addition to any
local counsel) if (i) in the reasonable judgment of such indemnifying parties the use of counsel
chosen by the indemnifying parties to represent such indemnified parties would present such counsel
with a conflict of interest, (ii) the defendants in, or targets of, any such litigation or
proceeding include both an indemnified party and the indemnifying parties, and such indemnified
party shall have reasonably concluded that there may be legal defenses available to it or to other
indemnified parties that are different from or additional to those available to the indemnifying
parties (in which case the indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified parties), (iii) the indemnifying parties shall not have
employed counsel reasonably satisfactory to such indemnified parties to represent such indemnified
parties within a reasonable time after notice of the institution of such litigation or proceeding
or (iv) the indemnifying parties shall authorize in writing such indemnified parties to employ
separate counsel at the expense of the indemnifying parties. In any action or proceeding the
defense of which the indemnifying parties assumes, the indemnified parties shall have the right to
participate in such litigation and retain its own counsel at such indemnified parties’ own expense.
No indemnifying party shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 10 or Section 11 hereof (whether or not the indemnified parties are actual or p
otential
parties thereto), unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
29
(d) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees
and expenses of counsel to which such indemnified party is entitled pursuant to this Agreement and
subject to applicable law, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 10(a) (ii) effected without its written consent if
(i) such settlement is entered into more than 90 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such
settlement at least 60 days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
(e) Other Agreements with Respect to Indemnification and Contribution. The provisions of this
Section 10 and in Section 11 hereof shall not affect any agreements among the Company with respect
to indemnification of each other or contribution between themselves.
SECTION 11. Contribution. If the indemnification provided for in Section 10 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Operating Partnership, on the one
hand, and Xxxxx Fargo, on the other hand, from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) 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 and the Operating Partnership, on the one
hand, and of Xxxxx Fargo, on the other hand, in connection with the statements or omissions.
The relative benefits received by the Company and the Operating Partnership, on the one hand,
and Xxxxx Fargo, on the other hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the total commissions received by Xxxxx Fargo, in each case as set forth on the
cover of the Prospectus, bear to the aggregate public offering price of the Securities as set forth
on such cover.
The relative fault of the Company and the Operating Partnership, on the one hand, and Xxxxx
Fargo, on the other hand, shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company and the Operating Partnership or by
Xxxxx Fargo and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Operating Partnership and Xxxxx Fargo agree that it would not be just and
equitable if contribution pursuant to this Section 11 were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations referred
to above in this Section 11. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 11 shall be
30
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 11, Xxxxx Fargo shall not be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which Xxxxx Fargo has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 11, each person, if any, who controls Xxxxx Fargo within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as Xxxxx Fargo, and the Company, the Operating Partnership, the trustees of
the Company, each of the officers who signed the Registration Statement, and each person, if any,
who controls the Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the
Company and the Operating Partnership.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company, the Operating Partnership or any Subsidiary of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of Xxxxx Fargo or controlling person, or by or on behalf of the
Company or the Operating Partnership, and shall survive delivery of the Securities to Xxxxx Fargo.
SECTION 13. Termination of Agreement.
(a) Termination; General. Xxxxx Fargo may terminate this Agreement, by notice to the Company,
as hereinafter specified at any time (i) if there has been, since the time of execution of this
Agreement or since the date as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change in the financial
markets in the United States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Xxxxx Fargo, impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in the Placement Securities has been suspended or limited by the Commission or the NYSE, or
if trading generally on the American Stock Exchange, the NYSE or the Nasdaq Global Market has been
suspended or limited, or minimum or maximum prices for
31
trading have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by order of the Commission, FINRA or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States or in Europe, or (iv) if a banking moratorium has been declared by either Federal or
New York authorities.
(b) Termination by the Company. The Company shall have the right, by giving three (3) days
notice, unless such notice is waived by the recipient, as hereinafter specified to terminate this
Agreement in their sole discretion at any time after the date of this Agreement.
(c) Termination by Xxxxx Fargo. Xxxxx Fargo shall have the right, by giving three (3) days
notice, unless such notice is waived by the recipient, as hereinafter specified to terminate this
Agreement in its sole discretion at any time after the date of this Agreement.
(d) Automatic Termination. Unless earlier terminated pursuant to this Section 13, this
Agreement shall automatically terminate upon the issuance and sale of Placement Securities through
Xxxxx Fargo on the terms and subject to the conditions set forth herein with an aggregate offering
price equal to the amount set forth in Section 1 of this Agreement.
(e) Continued Force and Effect. This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 13(a), (b), (c), or (d) above or otherwise by mutual agreement of
the parties.
(f) Effectiveness of Termination. Any termination of this Agreement shall be effective on the
date specified in such notice of termination; provided, however, that such
termination shall not be effective until the close of business on the date of receipt of such
notice by Xxxxx Fargo or the Company, as the case may be. If such termination shall occur prior to
the Settlement Date for any sale of Placement Securities, such Placement Securities shall settle in
accordance with the provisions of this Agreement.
(g) Liabilities. If this Agreement is terminated pursuant to this Section 13, such
termination shall be without liability of any party to any other party except as provided in
Section 8 hereof, and except that, in the case of any termination of this Agreement, Section 5,
Section 10, Section 11, Section 12, and Section 21 hereof shall survive such termination and remain
in full force and effect.
SECTION 14. Notices. Except as otherwise provided in this Agreement, all notices and
other communications hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to Xxxxx Fargo shall be
directed to Xxxxx Fargo Securities, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Equity Syndicate Department, fax no. 000-000-0000; notices to the Company shall be directed to it
at 0000 0xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx, 00000, Attention: X. Xxxxxxxx
Xxxxxxxx, President and Chief Financial Officer, fax no. 000-000-0000.
SECTION 15. Parties. This Agreement shall inure to the benefit of and be binding
upon Xxxxx Fargo, the Company, the Operating Partnership and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than Xxxxx Fargo, the Company, the Operating Partnership and their
32
respective successors and the controlling persons and officers and directors referred to in
Sections 10 and 11 and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of
Xxxxx Fargo, the Company, the Operating Partnership and their respective successors, and said
controlling persons and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Securities from Xxxxx Fargo
shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Adjustments for Stock Splits. The parties acknowledge and agree that all
stock-related numbers contained in this Agreement shall be adjusted to take into account any stock
split, stock dividend or similar event effected with respect to the Securities.
SECTION 17. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 18. Effect of Headings. The Section and Exhibit headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 19. Definitions. As used in this Agreement, the following terms have the
respective meanings set forth below:
“Applicable Time” means the time of each sale of any Securities or any securities
pursuant to this Agreement.
“Commission” means the Securities and Exchange Commission.
“XXXXX” means the Commission’s Electronic Data Gathering, Analysis and retrieval
system.
Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“GAAP” means generally accepted accounting principles.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Securities that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show” that is a “written communication” within the
meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (iii) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms, and all free writing
prospectuses that are listed
33
in Exhibit G hereto, in each case in the form furnished (electronically or otherwise) to
Xxxxx Fargo for use in connection with the offering of the Securities.
“NYSE” means the New York Stock Exchange.
“Organizational Documents” means (a) in the case of a corporation, its charter and
by-laws; (b) in the case of a limited or general partnership, its partnership certificate,
certificate of formation or similar organizational document and its partnership agreement; (c) in
the case of a limited liability company, its articles of organization, certificate of formation or
similar organizational documents and its operating agreement, limited liability company agreement,
membership agreement or other similar agreement; (d) in the case of a trust, its certificate of
trust, certificate of formation or similar organizational document and its trust agreement or other
similar agreement; and (e) in the case of any other entity, the organizational and governing
documents of such entity.
“Preferred Shares” means the Company’s preferred shares of beneficial interest, par
value $.01 per share.
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424(b),” “Rule
430B,” “Rule 433” and “Rule 462(b)” refer to such rules under the Securities
Act.
“Rule 462(b) Registration Statement” means a registration statement filed by the
Company pursuant to Rule 462(b) for the purpose of registering any of the Securities under the
Securities Act, including the documents incorporated by reference therein and the Rule
430A Information.
“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder or implementing the provisions thereof.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
All references in this Agreement to financial statements and schedules and other information
that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
All references in this Agreement to the Registration Statement, any Rule 462(b) Registration
Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to XXXXX; all references in this Agreement to
any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant
to Rule 433, are not required to be filed with the Commission) shall be deemed to include the copy
thereof filed with the Commission pursuant to XXXXX; and all references in this Agreement to
“supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or
similar materials prepared in connection with
34
any offering, sale or private placement of any Placement Securities by Xxxxx Fargo outside of
the United States.
SECTION 20. Permitted Free Writing Prospectuses. Each of the Company and the
Operating Partnership represents, warrants and agrees that, unless it obtains the prior consent of
Xxxxx Fargo, and Xxxxx Fargo represents, warrants and agrees that, unless it obtains the prior
consent of the Company, it has not made and will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such
free writing prospectus consented to by Xxxxx Fargo or by the Company, as the case may be, is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents
and warrants that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and record keeping. For the
purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in
Exhibit F hereto are Permitted Free Writing Prospectuses.
SECTION 21. Absence of Fiduciary Relationship. Each of the Company and the Operating
Partnership, severally and not jointly, acknowledges and agrees that:
(a) Xxxxx Fargo is acting solely as agent and/or principal in connection with the public
offering of the Securities and in connection with each transaction contemplated by this Agreement
and the process leading to such transactions, and no fiduciary or advisory relationship between the
Company or any of its respective affiliates, stockholders (or other equity holders), creditors or
employees or any other party, on the one hand, and Xxxxx Fargo, on the other hand, has been or will
be created in respect of any of the transactions contemplated by this Agreement, irrespective of
whether or not Xxxxx Fargo has advised or is advising the Company on other matters, and Xxxxx Fargo
has no obligation to the Company with respect to the transactions contemplated by this Agreement
except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not
established by Xxxxx Fargo;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;
(d) Xxxxx Fargo has not provided any legal, accounting, regulatory or tax advice with respect
to the transactions contemplated by this Agreement and it has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate;
(e) it is aware that Xxxxx Fargo and its respective affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company and Xxxxx Fargo has
no obligation to disclose such interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship or otherwise; and
(f) it waives, to the fullest extent permitted by law, any claims it may have against Xxxxx
Fargo for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that
35
Xxxxx Fargo shall not have any liability (whether direct or indirect, in contract, tort or
otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on its behalf or in right of it or the Company, employees or creditors of Company.
[Signature Page Follows]
36
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between Xxxxx Fargo Securities, LLC, the Company and the Operating
Partnership in accordance with its terms.
Very truly yours, COLONIAL PROPERTIES TRUST |
||||
By | /s/ X. Xxxxxxxx Xxxxxxxx, III | |||
Name: | X. Xxxxxxxx Xxxxxxxx, III | |||
Title: | President and Chief Financial Officer | |||
COLONIAL REALTY LIMITED PARTNERSHIP By: Colonial Properties Trust Its general partner |
||||
By | /s/ X. Xxxxxxxx Xxxxxxxx, III | |||
Name: | X. Xxxxxxxx Xxxxxxxx, III | |||
Title: | President and Chief Financial Officer | |||
CONFIRMED AND ACCEPTED, as of the date first above written: XXXXX FARGO SECURITIES, LLC |
||||
By: | /s/ Xxxxx Xxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxx | |||
Title: | Director | |||
37
EXHIBIT A
FORM OF PLACEMENT NOTICE
From: | [ ] | |
Cc: | [ ] | |
To: | [ ] |
Subject: Equity Distribution—Placement Notice
Ladies and Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Equity Distribution
Agreement between Colonial Properties Trust (the “Company”), Colonial Realty Limited
Partnership (the “Operating Partnership”) and Xxxxx Fargo Securities, LLC (“Xxxxx
Fargo”) dated December 10, 2010 (the “Agreement”), I hereby request on behalf of the
Company that Xxxxx Fargo sell up to [*] of the Company’s common shares of beneficial interest, par
value $.01 per share, at a minimum market price of $[*] per share.
ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO
BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY
XXXXX FARGO, AND/OR THE CAPACITY IN WHICH XXXXX FARGO MAY ACT IN SELLING SHARES (AS PRINCIPAL,
AGENT, OR BOTH)
A-1
EXHIBIT B
AUTHORIZED INDIVIDUALS FOR PLACEMENT NOTICES AND ACCEPTANCES
Xxxxx Fargo Securities, LLC
Name | ||
Xxxxxxxx Xxxxx
|
Xxxxxxxx.xxxxx@XxxxxXxxxx.xxx | |
Xxxxxx Xxxxx
|
Xxxxxx.xxxxx@XxxxxXxxxx.xxx | |
Xxxxxxx X’Xxxxxxx
|
Xxxxxxx.xxxxxxxx@XxxxxXxxxx.xxx | |
Xxxx Xxxxxxx
|
Xxxx.xxxxxxx@XxxxxXxxxx.xxx | |
Xxxxxxx Xxxxxxx
|
Xxxx.xxxxxxx@XxxxxXxxxx.xxx | |
Xxxxxxx Xxxxxx
|
Xxxxxxx.xxxxxx@XxxxxXxxxx.xxx | |
Xxxxxxxxxxx Xxxxxxxxx
|
Xxxxxxxxxxx.xxxxxxxxx@XxxxxXxxxx.xxx | |
Bo Diamond
|
Xx.xxxxxxx@XxxxxXxxxx.xxx | |
Xxx Xxxxxx
|
xxxxxxx@xxxxxxxxxxxxxx.xxx | |
Xxxxx Xxxxxx
|
xxxxxxx@xxxxxxxxxxxxxx.xxx | |
Xxxx Xxxxxx
|
xxxxxxx@xxxxxxxxxxxxxx.xxx | |
Xxxxxxx Xxxxxxxx
|
Xxxx.xxxxxxxx@XxxxxXxxxx.xxx | |
Xxxx Xxxxx
|
Xxxx.xxxxx@XxxxxXxxxx.xxx | |
Xxxxx Xxxxxx
|
Xxxxx.xxxxxx@XxxxxXxxxx.xxx | |
Xxxxx Xx
|
Xxxxx.xx@Xxxxxxxx.xxx | |
Xxxxxx Xxxxxxx
|
Xxxxxx.xxxxxxx@Xxxxxxxx.xxx | |
Xxxx Xxx Xxxxxxxx
|
Xxxxxxx.xxxxxxxx@Xxxxxxxx.xxx | |
Xxxxxxx Xxxxxx
|
X.xxxxxx@XxxxxXxxxx.xxx | |
Xxxxx Xxxxxx
|
Xxxxx.xxxxxx@Xxxxxxxx.xxx |
B-1
Colonial Properties Trust
Name | ||
Xxxxxx Xxxxxx, Chairman of the Board and CEO
|
xxxxxxx@xxxxxxxxxxxx.xxx | |
X. Xxxxxxxx Xxxxxxxx, President and CFO
|
xxxxxxxxx@xxxxxxxxxxxx.xxx | |
Xxxxx Xxxxxx, Executive Vice President — Finance
|
xxxxxxx@xxxxxxxxxxxx.xxx |
B-2
EXHIBIT C
COMPENSATION
Xxxxx Fargo shall be paid compensation equal to 2.00% of the gross sales price of Securities sold
pursuant to the terms of this Agreement.
C-1
EXHIBIT D-1
FORM OF OPINION OF XXXXX LOVELLS US LLP
D-1-1
EXHIBIT D-2
FORM OF OPINION OF LEITMAN, SIEGAL, XXXXX & XXXXXXXX, P.C.
D-2-1
EXHIBIT D-3
FORM OF OPINION OF SIROTE & PERMUTT, P.C.
D-3-1
EXHIBIT E
OFFICERS’ CERTIFICATE
The undersigned, [*], the duly qualified and elected [*] of Colonial Properties Trust (the
“Company”), an Alabama real estate investment trust, does hereby certify on behalf of the
Company, for itself and in its capacity as general partner of Colonial Realty Limited Partnership,
a Delaware limited partnership (the “Operating Partnership”), pursuant to Section 7(o) of
the Equity Distribution Agreement dated December 10, 2010 (the “Agreement”) among, the
Company, the Operating Partnership and Xxxxx Fargo Securities, LLC, that to the knowledge of the
undersigned:
(i) The representations and warranties of the Company and the Operating Partnership
in Section 5 of the Agreement (A) to the extent such representations and warranties are subject to
qualifications and exceptions contained therein relating to materiality or Material Adverse Effect
(as defined in the Agreement), are true and correct on and as of the date hereof with the same
force and effect as if expressly made on and as of the date hereof, except for those
representations and warranties that speak solely as of a specific date and which were true and
correct as of such date, and (B) to the extent such representations and warranties are not subject
to any qualifications or exceptions, are true and correct in all material respects as of the date
hereof as if made on and as of the date hereof with the same force and effect as if expressly made
on and as of the date hereof, except for those representations and warranties that speak solely as
of a specific date and which were true and correct as of such date; and
(ii) The Company and the Operating Partnership have each complied in all material
respects with all agreements and satisfied all conditions on their part to be performed or
satisfied pursuant to the Agreement at or prior to the date hereof (other than those conditions
waived by Xxxxx Fargo Securities, LLC).
COLONIAL PROPERTIES TRUST |
||||
By | ||||
Name: | ||||
Title: | ||||
E-1
EXHIBIT F
PERMITTED FREE WRITING PROSPECTUSES
None.
F-1