HEALTHCARE REALTY TRUST INCORPORATED 5,000,000 SHARES SALES AGREEMENT
Exhibit 1.2
HEALTHCARE REALTY TRUST INCORPORATED
5,000,000 SHARES
March 11, 2011
Credit Agricole Securities (USA) Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation (the “Company”), confirms
its agreement (this “Agreement”) with Credit Agricole Securities (USA) Inc. (“Credit
Agricole”), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue
and sell through Credit Agricole, acting as agent and/or principal, up to 5,000,000 shares (the
“Shares”) of the Company’s common stock, par value $0.01 per share (the “Common
Shares”). Notwithstanding anything to the contrary contained herein, the parties hereto agree
that compliance with the limitation set forth in this Section 1 on the number of Shares
issued and sold under this Agreement shall be the sole responsibility of the Company, and Credit
Agricole shall have no obligation in connection with such compliance. The issuance and sale of
Shares through Credit Agricole will be effected pursuant to the Registration Statement (as defined
below) filed by the Company and automatically effective, although nothing in this Agreement shall
be construed as requiring the Company to use the Registration Statement to issue Shares.
The Company has also entered into a sales agreement (the “Cantor Sales Agreement”)
dated as of even date hereof with Cantor Xxxxxxxxxx & Co. (“CF&Co”). The aggregate number
of Common Shares that may be sold pursuant to this Agreement and the Cantor Sales Agreement shall
not exceed 5,000,000 shares.
The Company and Credit Agricole are parties to that certain Sales Agreement dated January 11,
2011 (the “Prior Credit Agricole Sales Agreement”). The Company and CF&Co are parties to
that certain Sales Agreement dated January 11, 2011 (the “Prior Cantor Sales Agreement” and
collectively with the Prior Credit Agricole Sales Agreement, the “Prior Sales Agreements”).
Immediately prior to the date hereof, some Common Shares remained available to be sold pursuant to
the Prior Sales Agreements (the “Unused Shares”). As of March 10, 2011, the Unused Shares
consisted of 390,000 Common Shares. The 5,000,000 Shares referenced above to be sold pursuant
to this Agreement and the Cantor Sales Agreement do not include the Unused Shares, which may be
sold under the Prior Sales Agreements. The Company and Credit Agricole hereby agree that upon
execution of this Agreement the Prior Sales Agreements will remain in full force and effect until
terminated in accordance with their terms.
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 Securities and Exchange Commission (the “Commission”) an automatic shelf
registration statement on Form S-3
(File No. 333-172368), including a base prospectus, relating to certain securities, including the
Shares 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 prepared a prospectus supplement to the base prospectus
included as part of such registration statement specifically relating to the Shares (the
“Prospectus Supplement”). The Company will furnish to Credit Agricole, for use by Credit
Agricole, copies of the prospectus included as part of such registration statement, as supplemented
by the Prospectus Supplement. Except where the context otherwise requires, such registration
statement, as declared effective by the Commission, 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 or 462(b) 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, together with any “issuer free writing prospectus” (a
“Free Writing Prospectus”), as defined in Rule 433 of the Securities Act Regulations
(“Rule 433”), relating to the Shares that (i) is required to be filed with the Commission
by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i) in each case in the form
filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g), is herein called the
“Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any
amendment or supplement thereto shall be deemed to refer to and include the documents incorporated
by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement or the Prospectus shall be deemed to refer to and
include the filing after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this Agreement, all references to the
Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System or its Interactive Data Electronic Applications System (“XXXXX”).
2. Placements. Each time that the Company wishes to issue and sell all or a portion of
the Shares hereunder (each, a “Placement”), it will notify Credit Agricole by e-mail notice
in the form attached hereto as Schedule 1 (or other method mutually agreed to in writing by
the parties) containing the parameters in accordance with which it desires the Shares to be sold,
which shall at a minimum include the number of Shares to be issued (the “Placement
Shares”), the time period during which sales are requested to be made, any limitation on the
number of Shares that may be sold in any one day and any minimum price below which sales may not be
made (a “Placement Notice”). The Placement Notice shall originate from any of the
individual representatives of the Company set forth on Schedule 2 (with a copy to each of
the other individual representatives of the Company listed on such schedule), and shall be
addressed to each of the individual representatives of Credit Agricole set forth on Schedule
2, as such Schedule 2 may be amended from time to time. The Placement Notice shall be
effective upon receipt by Credit Agricole unless and until (i) in accordance with the notice
requirements set forth in Section 4, Credit Agricole declines to accept the terms contained
therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares have
been sold, (iii) in accordance with the notice requirements set forth in Section 4, the
Company suspends or terminates the Placement Notice, (iv) the Company issues a subsequent Placement
Notice with parameters superseding those on the
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earlier dated Placement Notice, or (v) this Agreement has been terminated pursuant to the
provisions of Section 11. The amount of any discount, commission or other compensation to
be paid by the Company to Credit Agricole in connection with the sale of the Placement Shares shall
be calculated in accordance with the terms set forth in Schedule 3. It is expressly
acknowledged and agreed that neither the Company nor Credit Agricole will have any obligation
whatsoever with respect to a Placement of any Placement Shares unless and until the Company
delivers a Placement Notice to Credit Agricole and Credit Agricole does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon the terms specified therein and
herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control.
3. (a) Sale of Placement Shares by Credit Agricole. Subject to the terms and
conditions herein set forth, upon the Company’s issuance of a Placement Notice, and unless the sale
of the Placement Shares described therein has been declined, suspended, or otherwise terminated in
accordance with the terms of this Agreement, Credit Agricole, for the period specified in the
Placement Notice, will use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules and regulations and the rules of
the New York Stock Exchange (the “Exchange”), to sell such Placement Shares up to the
amount specified and otherwise in accordance with the terms of such Placement Notice. Credit
Agricole 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 Shares hereunder setting forth the number of Placement Shares sold on such day, the
compensation payable by the Company to Credit Agricole pursuant to Section 2 with respect
to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization
of the deductions made by Credit Agricole (as set forth in Section 5(a)) from the gross
proceeds that it receives from such sales. After consultation with the Company and subject to the
terms of the Placement Notice, Credit Agricole may sell Placement Shares by any method permitted by
law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act,
including without limitation sales made directly on the Exchange, on any other existing trading
market for the Common Shares or to or through a market maker. After consultation with the Company
and subject to the terms of the Placement Notice, Credit Agricole may also sell Placement Shares in
privately negotiated transactions. The Company acknowledges and agrees that (i) there can be no
assurance that Credit Agricole will be successful in selling Placement Shares, (ii) Credit Agricole
will incur no liability or obligation to the Company or any other person or entity if it does not
sell Placement Shares for any reason other than a failure by Credit Agricole to use its
commercially reasonable efforts consistent with its normal trading and sales practices to sell such
Placement Shares as required under this Section 3, and (iii) Credit Agricole shall be under no
obligation to purchase Shares on a principal basis pursuant to this Agreement. For the purposes
hereof, “Trading Day” means any day on which Common Shares are purchased and sold on the
principal market on which the Common Shares are listed or quoted.
(b) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any
sales of Company Shares shall be effected by or through only one of CF&Co or Credit Agricole on any
single given day, and the Company shall in no event request that CF&Co and Credit Agricole sell
Company Shares on the same day.
4. Suspension of Sales. The Company or Credit Agricole may, upon notice to the other
party in writing (including by e-mail correspondence to each of the individuals of the other party
set forth on Schedule 2, 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 e-mail correspondence to each of the
individuals of the other party set forth on Schedule 2), suspend any sale of Placement
Shares; provided, however, that such suspension shall not
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affect or impair either party’s obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. Each of the parties agrees that no such notice under this
Section 4 shall be effective against the other unless it is made to one of the individuals
named on Schedule 2 hereto, as such Schedule may be amended from time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the applicable
Placement Notice, settlement for sales of Placement Shares will occur on the third (3rd)
Trading Day (or such earlier day as is industry practice for regular-way trading) following the
date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be
delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price received by Credit Agricole for
such Placement Shares, after deduction for (i) Credit Agricole’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 Credit Agricole hereunder pursuant to Section
7(h) (Expenses) hereof, and (iii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.
(b) Delivery of Placement Shares. On or before each Settlement Date, the Company will,
or will cause its transfer agent to, electronically transfer the Placement Shares being sold by
crediting Credit Agricole’s or its designee’s account (provided Credit Agricole 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 tradeable,
transferable, registered shares in good deliverable form. On each Settlement Date, Credit Agricole
will deliver the related Net Proceeds in same day funds to an account designated by the Company on,
or 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 Shares on a Settlement Date, in
addition to and in no way limiting the rights and obligations set forth in Section 9(a)
(Indemnification and Contribution) hereto, it will (i) hold Credit Agricole harmless against any
loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company and (ii) pay to Credit Agricole
any commission, discount, or other compensation to which it would otherwise have been entitled
absent such default; provided, however, that the Company shall not be obligated to so indemnify and
reimburse Credit Agricole if the Placement Shares are not delivered due to (i) a suspension or
material limitation in trading in securities generally on the Exchange, the American Stock Exchange
or the NASDAQ; (ii) a general moratorium on commercial banking activities declared by either
federal or New York State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iii) an outbreak or escalation of
hostilities or acts of terrorism involving the United States or a declaration by the United States
of a national emergency or war; or (iv) any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere.
6. Representations and Warranties of the Company. The Company represents and warrants
to, and agrees with, Credit Agricole that as of (i) the date of this Agreement, (ii) each
Representation Date (as defined in Section 7(n) below) on which a certificate is required
to be delivered pursuant to Section 7(n) of this Agreement, (iii) the date on which any
Placement Notice is given hereunder, and (iv) as of the time of each sale of Shares pursuant to
this Agreement (each such time of sale, an “Applicable Time”), as the case may be:
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(a) The Company satisfies all of the requirements of the Securities Act for use of Form S-3
for the offering of the Shares contemplated hereby. 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), at the time the Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Shares in
reliance on the exemption of Rule 163 of the Securities Act and at the date hereof, the Company was
and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act, including not
having been and not being an “ineligible issuer,” as defined in Rule 405 of the Securities Act. The
Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of
the Securities Act, and the Shares, since their registration on the Registration Statement, have
been and remain eligible for registration by the Company on a Rule 405 “automatic shelf
registration statement.” The Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration
statement form. The Company has paid or will pay the required Commission filing fees relating to
the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to
the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act
(including, if applicable, by updating the “Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) of the Securities Act either in a post-effective amendment to the
Registration Statement or on the cover page of the Prospectus).
(b) The Registration Statement became effective upon filing under Rule 462(e) of the
Securities Act on February 18, 2011. No stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional information has been complied with.
(c) Any offer that is a written communication relating to the Shares made prior to the initial
filing of the Registration Statement by the Company or any person acting on its behalf (within the
meaning, for this paragraph only, of Rule 163(c) of the Securities Act) has been filed with the
Commission in accordance with the exemption provided by Rule 163 of the Securities Act and
otherwise complied with the requirements of Rule 163 of the Securities Act, including without
limitation the legending requirement.
(d) The Company has delivered to Credit Agricole one complete copy of the Registration
Statement and a copy of each consent and certificate of experts filed as a part thereof, and
conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or
supplemented, in such quantities and at such places as Credit Agricole has reasonably requested.
The Prospectus delivered to Credit Agricole for use in connection with the offering of Shares will,
at the time of such delivery, be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) At the respective times the Registration Statement and each amendment thereto became
effective, at each deemed effective date with respect to Credit Agricole pursuant to Rule
430B(f)(2) of the Securities Act, as the case may be, the Registration Statement complied and will
comply in all material respects with the requirements of the Securities Act, and 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. The preceding sentence
does not apply to statements in or omissions from the Registration Statement or any amendment
thereto in reliance upon and in
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conformity with written information relating to Credit Agricole furnished to the Company in writing
by Credit Agricole expressly for inclusion in any of the aforementioned documents.
(f) Neither the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued, as of the date hereof, at each
Representation Date, and at each Applicable Time, 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 preceding sentence does not apply to statements in or omissions from the
Prospectus, as amended or supplemented, in reliance upon and in conformity with written information
relating to Credit Agricole furnished to the Company in writing by Credit Agricole expressly for
inclusion in any of the aforementioned documents.
(g) 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 the rules and regulations thereunder, 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 and the rules and regulations thereunder; 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.
(h) Each issuer Free Writing Prospectus, on its issue date, and as of each Applicable Time,
did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the Prospectus, including any
incorporated document deemed to be a part thereof that has not been superseded or modified. 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 Credit
Agricole specifically for use therein.
(i) This Agreement has been duly authorized, executed and delivered by the Company and this
Agreement constitutes a valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally and by general principles of equity (the
“Exceptions”).
(j) The Company and its “Subsidiaries” (as defined in Section 6(m) hereof) have been
duly incorporated or organized and are validly existing as corporations or organizations in good
standing under the laws of the states or other jurisdictions in which they are incorporated or
organized, with full power and authority (corporate and other) to own, lease and operate their
properties and conduct their businesses as described in the Prospectus and, with respect to the
Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the
Company and its Subsidiaries are duly qualified to do business as foreign corporations or
organizations in good standing in each state or other jurisdiction in which their ownership or
leasing of property or conduct of business legally requires such qualification, except where the
failure to be so qualified, individually or in the aggregate, would not have a Material Adverse
Effect. The term “Material Adverse Effect” as used herein means any material
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adverse effect on the condition (financial or other), net worth, business, affairs, management,
prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a
whole.
(k) Neither the Company nor any of its Subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental action, order or
decree otherwise than as set forth in the Prospectus or as disclosed in writing to Credit Agricole
prior to execution and delivery of this Agreement and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of its Subsidiaries which would
give rise to a Material Adverse Effect, or any development involving a prospective Material Adverse
Effect, in or affecting the general affairs, management, financial position, stockholders’ equity
or results of operations of the Company and its Subsidiaries taken as a whole, otherwise than as
set forth in the Prospectus.
(l) The issuance and sale of the Shares pursuant to this Agreement and the execution, delivery
and performance by the Company of this Agreement, and the consummation of the transactions herein
or therein contemplated, will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any properties or assets of the Company or any of its
Subsidiaries under, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party, or by which the Company or
any of its Subsidiaries is bound, or to which any of the properties or assets of the Company or any
of its Subsidiaries is subject, or violate any statute, rule, regulation or other law, or any order
or judgment, of any court or governmental agency or body having jurisdiction over the Company or
any of its Subsidiaries or any of their properties, except to such extent as, individually or in
the aggregate, does not have a Material Adverse Effect, nor will such action result in any
violation of the provisions of the Company’s articles of incorporation or bylaws; and no consent,
approval, authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares pursuant to this Agreement or the consummation of
the transactions contemplated hereby, except such as have been, or will be prior to the applicable
Settlement Date, obtained under the Securities Act or as may be required by the Exchange and such
consents, approvals, authorizations, registrations or qualifications as may be required under state
securities or blue sky laws in connection with the purchase and distribution of the Shares by
Credit Agricole.
(m) The Company has duly and validly authorized capital stock as set forth in the Prospectus;
all outstanding Common Shares of the Company conform, and when issued the Shares will conform, to
the description thereof in the Prospectus and the Shares, when issued and paid for in the manner
described herein, will be duly authorized, validly issued, fully paid and non-assessable; and the
issuance of the Shares to be purchased from the Company hereunder is not subject to preemptive or
other similar rights, or any restriction upon the voting or transfer thereof (except for those
rights and restrictions relating primarily to the Company’s status as a REIT as described in
Section 6(cc) hereof) pursuant to applicable law or the Company’s articles of incorporation or
by-laws or any agreement to which the Company or any of its Subsidiaries is a party or by which any
of them may be bound. All corporate action required to be taken by the Company for the
authorization, issuance and sale of the Shares has been duly and validly taken prior to the
execution of this Agreement. Except as disclosed in the Prospectus, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or
rights related to or entitling any person to purchase or otherwise to
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acquire any shares of, or any security convertible into or exchangeable or exercisable for, the
capital stock of, or other ownership interest in, the Company. The Company has no subsidiaries
(collectively, “Subsidiaries”) other than those identified in Exhibit 21 to the Company’s
last filed Annual Report on Form 10-K or as otherwise disclosed in writing to Credit Agricole
(“Exhibit 21”). The Company owns all of the outstanding capital stock of or other equity
interests in each such subsidiary except as set forth in Exhibit 21 or as otherwise disclosed in
writing to Credit Agricole. Other than the Subsidiaries referred to above, the Company does not
own, directly or indirectly, any shares of stock or any other equity or long-term debt of any other
corporation or have any direct or indirect equity interest or ownership of long-term debt in any
firm, partnership, joint venture, limited liability company, association or other entity, except as
described in the Prospectus. The outstanding shares of capital stock of or other equity interests
in the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and, except as otherwise set forth in Exhibit 21, are owned, directly or indirectly,
by the Company free and clear of any mortgage, pledge, lien, encumbrance, charge or adverse claim
and are not the subject of any agreement or understanding with any person and were not issued in
violation of any preemptive or similar rights; and there are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or instruments related to or
entitling any person to purchase or otherwise acquire any shares of, or any security convertible
into or exchangeable or exercisable for, the capital stock of, or other ownership interest in any
of the Subsidiaries.
(n) The statements set forth in the Prospectus, as of its date of issue, describing the Shares
and this Agreement, insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material respects.
(o) Each of the Company and its Subsidiaries is in possession of and is operating in
compliance with all franchises, grants, authorizations, licenses, certificates, permits, easements,
consents, orders and approvals (“Permits”) from all state, federal, foreign and other
regulatory authorities, and has satisfied the requirements imposed by regulatory bodies,
administrative agencies or other governmental bodies, agencies or officials, that are required for
the Company and its Subsidiaries lawfully to own, lease and operate their properties and conduct
their businesses as described in the Prospectus, in each case with such exceptions, individually or
in the aggregate, as would not have a Material Adverse Effect; and, each of the Company and its
Subsidiaries is conducting its business in compliance with all of the laws, rules and regulations
of each jurisdiction in which it conducts its business, in each case with such exceptions,
individually or in the aggregate, as would not have a Material Adverse Effect; each of the Company
and its Subsidiaries has filed all notices, reports, documents or other information
(“Notices”) required to be filed under applicable laws, rules and regulations, in each
case, with such exceptions, individually or in the aggregate, as would not have a Material Adverse
Effect; and, except as otherwise specifically described in the Prospectus, neither the Company nor
any of its Subsidiaries has received any notification from any court or governmental body,
authority or agency, relating to the revocation or modification of any such Permit or, to the
effect that any additional authorization, approval, order, consent, license, certificate, permit,
registration or qualification (“Approvals”) from such regulatory authority is needed to be
obtained by any of them, in any case where it could be reasonably expected that obtaining such
Approvals or the failure to obtain such Approvals, individually or in the aggregate, would have a
Material Adverse Effect.
(p) All United States federal income tax returns of the Company and its Subsidiaries required
by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which
are due and payable, have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided. The Company and its
Subsidiaries have filed all other tax returns that are required to have been filed by them pursuant
to applicable foreign,
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state, local or other law, except insofar as the failure to file such returns, individually or in
the aggregate, would not result in a Material Adverse Effect, and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by the Company or any Subsidiary except for
such taxes, if any, as are being contested in good faith and as to which adequate reserves have
been provided. The charges, accruals and reserves on the books of the Company and its Subsidiaries
in respect of any income and corporation tax liability for any years not finally determined are
adequate to meet any assessments or re-assessments for additional income tax for any years not
finally determined.
(q) The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, all
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks, service
marks and trade names, patents and patent rights (collectively “Intellectual Property”)
material to carrying on their businesses as described in the Prospectus, and neither the Company
nor any of its Subsidiaries has received any correspondence relating to any Intellectual Property
or notice of infringement of or conflict with asserted rights of others with respect to any
Intellectual Property which would render any Intellectual Property invalid or inadequate to protect
the interest of the Company and its Subsidiaries and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the
aggregate, would have or may reasonably be expected to have a Material Adverse Effect.
(r) Except in each case such as would not have a Material Adverse Effect, the Company and its
Subsidiaries have good and marketable title in fee simple or valid, enforceable leasehold title to
all items of real property and good and marketable title to all personal property owned by them or
disclosed as owned by them in the Prospectus, in each case free and clear of all liens,
encumbrances, restrictions and defects except such as are described in the Prospectus or do not
materially affect the value of such property and do not interfere with the use made and proposed to
be made of such property; and any property held under lease or sublease by the Company or any of
its Subsidiaries is held under valid, duly authorized, subsisting and enforceable leases or
subleases with such exceptions as are not material and do not interfere with the use made and
proposed to be made of such property by the Company and its Subsidiaries; the Company and its
Subsidiaries have title insurance on all real properties described in the Prospectus as having been
financed by them pursuant to a mortgage loan in an amount at least equal to the aggregate principal
amount of each such mortgage loan or in an amount at least equal to the aggregate acquisition price
paid by the Company or its Subsidiaries for such properties and the cost of construction of the
improvements located on such properties; and neither the Company nor any of its Subsidiaries has
any notice or knowledge of any material claim of any sort which has been, or may be, asserted by
anyone adverse to the Company’s or any of its Subsidiaries rights as lessee or sublessee under any
lease or sublease described above, or affecting or questioning the Company’s or any of its
Subsidiaries’ rights to the continued possession of the leased or subleased premises under any such
lease or sublease in conflict with the terms thereof. To the knowledge of the Company, no lessee of
any portion of any of the properties described in the Prospectus is in default under its respective
lease and there is no event which, but for the passage of time or the giving of notice or both,
would constitute a default under any such lease, except such defaults that would, individually or
in the aggregate, not have a Material Adverse Effect.
(s) No labor disturbance exists with the employees of the Company or any of its Subsidiaries
or, to the Company’s knowledge, is imminent which, individually or in the aggregate, would have a
Material Adverse Effect. None of the employees of the Company or any of its Subsidiaries is
represented by a union and, to the knowledge of the Company and its Subsidiaries, no union
organizing activities are taking place. Neither the Company nor any of its Subsidiaries has
violated any federal, state or local law or foreign law relating to discrimination in hiring,
promotion or pay of employees, nor any applicable
9
wage or hour laws, or the rules and regulations thereunder, or analogous foreign laws and
regulations, which might, individually or in the aggregate, result in a Material Adverse Effect.
(t) The Company and its Subsidiaries are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company and its Subsidiaries would have any liability; the Company
and its Subsidiaries have not incurred and do not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”); and each “pension plan” for which the Company or
any of its Subsidiaries would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects, and, to the Company’s knowledge,
nothing has occurred, whether by action or by failure to act, which would cause the loss of such
qualification.
(u) The Company and its Subsidiaries maintain insurance of the types and in the amounts
generally deemed adequate for its business, including, but not limited to, directors’ and officers’
insurance, insurance covering real and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect. Neither the Company nor any of
its Subsidiaries has been refused any insurance coverage sought or applied for, and the Company has
no reason to believe that it and its Subsidiaries will not be able to renew their existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not have a Material
Adverse Effect.
(v) Neither the Company nor any of its Subsidiaries is, or with the giving of notice or lapse
of time or both would be, in default or violation with respect to its articles of incorporation or
by-laws. Neither the Company nor any of its Subsidiaries is, or with the giving of notice or lapse
of time or both would be, in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound or to which any of the
properties or assets of the Company or any of its Subsidiaries is subject, or in violation of any
statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which
it is subject, including, without limitation, Section 13 of the 1934 Act, which default or
violation, individually or in the aggregate, would have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any payment to any state, federal or foreign
government official, or other person charged with similar public or quasi-public duty (other than
any such payment required or permitted by applicable law).
(w) Other than as set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or of which any property of the
Company or any of its Subsidiaries is the subject, or to the Company’s knowledge, any person from
whom the Company or any of its Subsidiaries acquired any of such property, or any lessee, sublessee
or operator of any such property or portion thereof is a party, that, if determined adversely to
the Company or any of its Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect or which would materially and adversely affect the consummation of the transactions
contemplated hereby or which is required to be disclosed in the Registration Statement or the
10
Prospectus; to the Company’s knowledge, no such proceedings are threatened or contemplated. Neither
the Company nor any of its Subsidiaries has, nor, to the Company’s knowledge, any seller, lessee,
sublessee or operator of any such properties, or portion thereof or any previous owner thereof has,
received from any governmental authority notice of any material violation of any municipal, state
or federal law, rule or regulation (including without limitation any such law, rule or regulation
applicable to the health care industry) and including foreign, federal, state or local law or
regulation relating to human health or safety or the environment or hazardous substances or
materials concerning such properties, or any part thereof which has heretofore been cured, and
neither the Company nor any of its Subsidiaries knows of any such violation, or any factual basis,
occurrence or circumstance that would give rise to a claim under or pursuant to any such laws,
rules or regulations which would, in any of the cases set forth in the sentence, individually or in
the aggregate, have a Material Adverse Effect. Except as described in the Prospectus, none of the
property owned or leased by the Company or any of its Subsidiaries is, to the knowledge of the
Company, contaminated with any waste or hazardous substances, and neither the Company nor any of
its Subsidiaries may be deemed an “owner or operator” of a “facility” or “vessel” which owns,
possesses, transports, generates or disposes of a “hazardous substance” as those terms are defined
in §9601 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. §9601 et seq., except to the extent that it would not have a Material Adverse Effect or a
material adverse effect on any Material Subsidiary. Neither the Company nor any of its
Subsidiaries, nor, to the Company’s knowledge, any seller, lessee, sublessee or operator of any
such property, or portion thereof has, received from any governmental authority any written notice
of any condemnation of or zoning change affecting such properties, or any part thereof that would
have a Material Adverse Effect, or a material adverse effect on any Material Subsidiary and the
Company does not know of any such condemnation or zoning change which is threatened and which if
consummated would have a Material Adverse Effect, or a material adverse effect on any Material
Subsidiary. No contract or document of a character required to be described in the Registration
Statement, the Prospectus or any document incorporated by reference therein or to be filed as an
exhibit to the Registration Statement or any document incorporated therein is not so described,
filed or incorporated by reference as required.
(x) The Company is not and, after giving effect to the offering and sale of the Shares, will
not be an “investment company” or an entity “controlled” by an “investment company,” as such terms
are defined in the Investment Company Act of 1940, as amended (the “1940 Act”).
(y) The accounting firm which has audited the financial statements filed with or incorporated
by reference in and as a part of the Registration Statement, is an independent registered public
accounting firm within the meaning of the Securities Act and the Exchange Act. The consolidated
financial statements and schedules of the Company, including the notes thereto, filed with or
incorporated by reference and as a part of the Registration Statement or the Prospectus, are
accurate in all material respects and present fairly in all material respects the financial
condition of the Company and its Subsidiaries as of the respective dates thereof and the
consolidated results of operations and changes in financial position and consolidated statements of
cash flow for the respective periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods involved except as
otherwise disclosed therein. All adjustments necessary for a fair presentation of results for such
periods have been made. The selected financial data included or incorporated by reference in the
Registration Statement and Prospectus present fairly in all material respects the information shown
therein and have been compiled on a basis consistent with that of the audited financial statements.
Any operating or other statistical data included or incorporated by reference in the Registration
Statement and Prospectus comply in all material respects with the Securities Act and the Exchange
Act and present fairly in all material respects the information shown therein. The pro forma
financial statements and the related notes thereto included in or incorporated by reference in
11
the Registration Statement and Prospectus present fairly, in all material respects, the information
shown therein, have been prepared in accordance with the SEC’s rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to therein. No other
financial statements or schedules are required by Form S-3 or otherwise to be included in the
Registration Statement or the Prospectus.
(z) Except as disclosed in the Prospectus, no holder of any security of the Company has any
right to require registration of the Shares or any other security of the Company because of the
filing of the Registration Statement or the consummation of the transactions contemplated hereby.
No person has the right, contractual or otherwise, to cause the Company to permit such person to
underwrite the sale of any of the Shares. Except for this Agreement and the Cantor Sales Agreement
there are no contracts, agreements or understandings between the Company or any of its Subsidiaries
and any person that would give rise to a valid claim against the Company, its Subsidiaries or
Credit Agricole for a brokerage commission, finder’s fee or like payment in connection with the
issuance, purchase and sale of the Shares pursuant to this Agreement.
(aa) The Company has not distributed and, prior to completion of the distribution of the
Shares, will not distribute any offering material in connection with the offering and sale of the
Shares other than the Registration Statement, the Prospectus Supplement, any Issuer Free Writing
Prospectus or the Prospectus relating to such issuance.
(bb) The Company has not taken and will not take, directly or indirectly, any action designed
to or which might reasonably be expected to cause or result in stabilization or manipulation of the
price of the Company’s Common Shares, and the Company is not aware of any such action taken or to
be taken by affiliates of the Company.
(cc) (i) The Company is organized and operates in conformity with the requirements for
qualification as a real estate investment trust (“REIT”) under Sections 856 and 857 of the
Code, (ii) the Company qualified as a REIT for all taxable years prior to 2011, and (iii) the
Company’s current method of operation will enable it to meet the requirements for taxation as a
REIT under the Code for 2011, and the Company intends to qualify as a REIT for all subsequent
years.
(dd) Except as described in the Prospectus, neither the Company nor any of its Subsidiaries
has either given or received any communication regarding the termination of, or intent not to
renew, any of the leasehold interests of lessees in the Company’s and its Subsidiaries’ properties
held under lease, any property operating agreement or any other agreement between the Company or
its Subsidiaries and the operators of its properties or facilities, and no such termination or
non-renewal has been threatened by the Company, any of its Subsidiaries or, to the Company’s
knowledge, any other party to any such lease, other than as would not have, individually or in the
aggregate, a Material Adverse Effect.
(ee) Except for the Subsidiaries identified on Schedule 6(ee) to this Agreement
(“Material Subsidiaries”), none of the Subsidiaries of the Company individually consist of
more than 1.5%, or in the aggregate consist of more than 10%, of the Company’s (i) net assets, or
(ii) revenues for the most recently ended quarterly period for which financial statements are
available.
(ff) There is and has been no failure on the part of the Company and, to the Company’s
knowledge, any of the Company’s directors or officers, in their capacities as such, to comply with
any provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection
12
therewith (collectively, the “Sarbanes Oxley Act”), including Section 402 relating to loans
and Sections 302 and 906 related to certifications.
(gg) Neither the Company nor any Subsidiary nor, to the knowledge of the Company, any
director, trustee, officer, agent, employee or affiliate 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 directly or indirectly use
the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other person or entity, for the purpose of financing any
activities of any person currently subject to any U.S. sanctions administered by OFAC.
(hh) The statistical and market and industry-related data included in the Prospectus are based
on or derived from sources which the Company believes to be reliable and accurate or represent the
Company’s good faith estimates that are made on the basis of data derived from such sources, and
the Company has obtained the written consent to the use of such data from sources to the extent
required.
(ii) The Company’s independent registered public accounting firm and the Audit Committee of
the Board of Directors of the Company have been advised of: (i) all significant deficiencies, if
any, in the design or operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data or any material weakness in
internal controls; and (ii) all fraud, if any, whether or not material, that involves management or
other employees who have a significant role in the internal controls of the Company and each of its
Subsidiaries; since the date of the most recent evaluation of such internal controls, there has
been 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 principal executive officers (or their equivalents) and principal
financial officers (or their equivalents) of the Company have made all certifications required by
the Xxxxxxxx-Xxxxx Act and any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct.
(jj) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15 (e) of the 0000 Xxx) that comply with the requirements of the Exchange Act; such disclosure
controls and procedures are effective.
(kk) Neither the Company nor any of its Subsidiaries, or any director, officer, agent,
employee or other person associated with or acting on behalf of the Company or any of its
Subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from corporate funds, (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, or (iv)
made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment.
(ll) Any certificate signed by any officer of the Company and delivered to Credit Agricole or
to counsel for Credit Agricole shall be deemed a representation and warranty by the Company to
Credit Agricole as to the matters covered thereby.
(mm) No Subsidiary of the Company is prohibited or restricted, directly or indirectly, from
paying dividends to the Company, or from making any other distribution with respect to such
Subsidiary’s equity securities or from repaying to the Company or any other Subsidiary of the
Company any amounts that may from time to time become due under any loans or advances to such
Subsidiary from the Company of from transferring any property or assets to the Company or to any
other Subsidiary.
13
(nn) Other than this Agreement, the Cantor Sales Agreement, and the Prior Sales Agreements,
the Company is not party to any agreement with an agent or underwriter for any other
“at-the-market” or continuous public offering of Common Shares by the Company.
7. Covenants of the Company. The Company covenants and agrees with Credit Agricole
that:
(a) Registration Statement Amendments; Payment of Fees. After the date of this
Agreement and during any period in which a Prospectus relating to any Placement Shares is required
to be delivered by Credit Agricole 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 Credit Agricole 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 not file any amendment or supplement to the Registration Statement or Prospectus,
other than documents incorporated by reference, relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to Credit Agricole
within a reasonable period of time before the filing and Credit Agricole has not reasonably
objected thereto (provided, however, (A) that the failure of Credit Agricole to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect Credit Agricole’s
right to rely on the representations and warranties made by the Company in this Agreement and (B)
that the Company has no obligation to provide Credit Agricole any advance copy of such filing or to
provide Credit Agricole an opportunity to object to such filing if such filing does not name Credit
Agricole or does not relate to the transactions contemplated hereunder) and the Company will
furnish to Credit Agricole 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 Credit Agricole,
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 any other order preventing or suspending the use of the Prospectus, of the suspension
of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose or any examination pursuant to
Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the offering of the Shares; and it will
promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such a stop order should be issued.
(c) Delivery of Prospectus; Subsequent Changes. During any period in which a
Prospectus relating to the Placement Shares is required to be delivered by Credit Agricole under
the Securities Act with respect to the offer and sale of the Placement Shares (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities
Act), the Company will use its best efforts to comply with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or before their respective due dates
all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under
the Exchange Act. If during such period any event occurs as a result of which the Prospectus as
then amended or supplemented would
14
include an untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration Statement or Prospectus to
comply with the Securities Act, the Company will promptly notify Credit Agricole to suspend the
offering of Placement Shares during such period and the Company will promptly amend or supplement
the Registration Statement or Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance. The Company will file pursuant to applicable
securities laws any other financial statements or schedules required by Form S-3 or otherwise to be
included in the Registration Statement or the Prospectus at the time so required.
(d) Listing of Placement Shares. During any period in which the Prospectus relating to
the Placement Shares is required to be delivered by Credit Agricole under the Securities Act with
respect to the offer and sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use
its commercially reasonable efforts to cause the Placement Shares to be listed on the Exchange and
to qualify the Placement Shares for sale under the securities laws of such jurisdictions as Credit
Agricole reasonably designates and to continue such qualifications in effect so long as required
for the distribution of the Placement Shares; provided, however, that the Company shall not be
required in connection therewith to qualify as a foreign entity or dealer in securities or file a
general consent to service of process in any jurisdiction.
(e) Filings with the Exchange. The Company will timely file with the Exchange all
material documents and notices required by the Exchange of companies that have or will issue
securities that are traded on the Exchange.
(f) Delivery of Registration Statement and Prospectus. The Company will furnish to
Credit Agricole 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 that are filed with the
Commission during any period in which a Prospectus relating to the Placement Shares 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 as Credit Agricole may from time to time reasonably
request and, at Credit Agricole’s request, will also furnish copies of the Prospectus to each
exchange or market on which sales of the Placement Shares may be made; provided, however, that the
Company shall not be required to furnish any document (other than the Prospectus) to Credit
Agricole to the extent such document is available on XXXXX.
(g) Earnings Statement. The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act. “Earnings statement” and “make
generally available” will have the meanings contained in Rule 158 under the Securities Act.
(h) Expenses. The Company, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated in accordance with the provisions of Section 11
hereunder, will pay all expenses incident to the performance of its obligations hereunder,
including, but not limited to, expenses relating to (i) the preparation, printing and filing of the
Registration Statement and each amendment and supplement thereto, of each Prospectus and of each
amendment and supplement thereto, (ii) the preparation, issuance and delivery of the Placement
Shares, (iii) the qualification of the Placement Shares under securities laws in accordance with
the provisions of
15
Section 7(d) of this Agreement, including filing fees, (iv) the printing and delivery to Credit
Agricole of copies of the Prospectus and any amendments or supplements thereto, and of this
Agreement, (v) the fees and expenses incurred in connection with the listing or qualification of
the Placement Shares for trading on the Exchange, and (vi) filing fees and expenses, if any, of the
Commission and the Financial Industry Regulatory Authority, Corporate Financing Department.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder in accordance in all material respects with the statements under
the caption “Use of Proceeds” in the Prospectus.
(j) Notice of Other Sales. During the pendency of any Placement Notice given
hereunder, the Company shall provide Credit Agricole 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 Shares offered pursuant to the provisions of this
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,
(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 Credit Agricole in advance.
(k) 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 Shares, advise Credit
Agricole 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 Credit Agricole pursuant to this Agreement.
(l) Due Diligence Cooperation. The Company will cooperate with any reasonable due
diligence review conducted by Credit Agricole 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 Credit Agricole may reasonably request.
(m) Required Filings Relating to Placement of Placement Shares. The Company agrees
that on such dates as the Securities Act shall require, the Company will (i) file a prospectus
supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act, which prospectus supplement will set forth, within the relevant period, the amount of
Placement Shares sold through Credit Agricole, the Net Proceeds to the Company and the compensation
payable by the Company to Credit Agricole with respect to such Placement Shares, and (ii) deliver
such number of copies of each such prospectus supplement to each exchange or market on which such
sales were effected as may be required by the rules or regulations of such exchange or market.
(n) Representation Dates; Certificate. On or prior to the date that the first Shares
are sold pursuant to the terms of this Agreement and each time the Company (i) files the Prospectus
relating to the Placement Shares or amends or supplements the Registration Statement or the
Prospectus relating to the Placement Shares (other than a prospectus supplement filed in accordance
with Section 7(m) of this Agreement) 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
16
the Placement Shares; (ii) files an annual report on Form 10-K under the Exchange Act; (iii) files
its quarterly reports on Form 10-Q under the Exchange Act; or (iv) files a report on Form 8-K
containing amended financial statements (other than “furnished” information pursuant to Items 2.02
or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the
reclassifications of certain properties as discontinued operations in accordance with Statement of
Financial Accounting Standards No. 144), or financial statements required by Rule 3-14 of
Regulation S-X, under the Exchange Act (each date of filing of one or more of the documents
referred to in clauses (i) through (iv) shall be a “Representation Date”); the Company
shall furnish Credit Agricole with a certificate, in the form attached hereto as Exhibit
7(n) within three (3) Trading Days of any Representation Date if requested by Credit Agricole.
The requirement to provide a certificate under this Section 7(n) shall be waived for any
Representation Date occurring at a time at which no Placement Notice 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 Shares following a Representation Date when the
Company relied on such waiver and did not provide Credit Agricole with a certificate under this
Section 7(n), then before the Company delivers the Placement Notice or Credit Agricole
sells any Placement Shares, the Company shall provide Credit Agricole with a certificate, in the
form attached hereto as Exhibit 7(n), dated the date of the Placement Notice.
(o) Legal Opinions. On or prior to the date that the first Shares are sold pursuant to
the terms of this Agreement, Credit Agricole shall have received the favorable opinion of Xxxxx
Xxxx LLP, in form and substance satisfactory to Credit Agricole. On or prior to the date that the
first Shares are sold pursuant to the terms of this Agreement and 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 7(n) for which no waiver is applicable, the Company
shall cause to be furnished to Credit Agricole a written opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx,
LLP (“Company Counsel”), or other counsel satisfactory to Credit Agricole, in form and
substance satisfactory to Credit Agricole and its counsel, dated the date that the opinion is
required to be delivered, modified, as necessary, to relate to the Registration Statement and the
Prospectus as then amended or supplemented; provided, however, that in lieu of such opinions for
subsequent Representation Dates, counsel may furnish Credit Agricole with a letter (a “Reliance
Letter”) to the effect that Credit Agricole may rely on a prior opinion delivered under this
Section 7(o) 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).
(p) Comfort Letter. On or prior to the date that the first Shares are sold pursuant to
the terms of this Agreement and 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 7(n) for which no waiver is applicable, the Company shall cause its independent
registered public accounting firm (and any other independent registered public accounting firm
whose report is included in the Registration Statement or the Prospectus) to furnish Credit
Agricole letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered,
in form and substance satisfactory to Credit Agricole, (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act, the Exchange Act and
the rules adopted by 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
17
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.
(q) 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 Shares or (ii) sell, bid for, or purchase the Shares to be
issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases
of the Shares to be issued and sold pursuant to this Agreement other than Credit Agricole;
provided, however, that the Company may bid for and purchase its Common Shares in accordance with
Rule 10b-18 under the Exchange Act.
(r) Insurance. The Company and its Subsidiaries shall maintain, or cause 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.
(s) 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.
(t) REIT Treatment. The Company currently intends to continue to elect to qualify as a
real estate investment trust under the Code and will use all reasonable efforts to enable the
Company to continue to meet the requirements for qualification and taxation as a REIT under the
Code for subsequent tax years that include any portion of the term of this Agreement. For the
fiscal year ended December 31, 2010 the Company has retained BDO USA, LLP as its independent
registered public accounting firm. In the course of its audit BDO USA reviewed the Company’s test
procedures and conducted annual compliance reviews designed to determine the Company’s compliance
with REIT provisions of the Code. The Company monitors and maintains appropriate accounting
systems and procedures designed to determine compliance with the REIT provisions of the Code. For
the 2011 fiscal year the Company has engaged BDO USA to prepare an audit, including a review of the
Company’s test procedures and to conduct annual compliance reviews designed to determine the
Company’s compliance with REIT provisions of the Code. The Company will continue to monitor and
maintain appropriate accounting systems and procedures designed to determine compliance with the
REIT provisions of the Code
(u) Investment Company Act. The Company is familiar with the 1940 Act and the rules
and regulations thereunder, and will in the future use its reasonable best efforts to ensure that
the Company will not be an “investment company” within the meaning of the 1940 Act and the rules
and regulations thereunder.
(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 Shares 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 Credit Agricole in its
capacity as principal or agent hereunder, neither Credit Agricole nor the Company (including its
agents and
18
representatives, other than Credit Agricole in its capacity as such) will, directly or indirectly,
use, authorize, approve or refer to any free writing prospectus relating to the Shares to be sold
by Credit Agricole as principal or agent hereunder.
(x) Xxxxxxxx-Xxxxx Act. The Company, and each of the Material Subsidiaries, will use
reasonable commercial efforts to maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles and
to maintain accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded book value for assets is
compared with the fair market value of such assets (computed in accordance with generally accepted
accounting principles) at reasonable intervals and appropriate action is taken with respect to any
differences. The Company will use reasonable commercial efforts to comply with all requirements
imposed upon it by the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission and the
Exchange promulgated thereunder.
(y) Register and Transfer Agent. The Company shall maintain, at its expense, a
registrar and transfer agent for the Common Shares.
(z) Renewal of Registration Statement. The date of this Agreement is not more than
three years subsequent to the initial effective date of the Registration Statement (the
“Renewal Date”). If, immediately prior to the Renewal Date, this Agreement has not
terminated and a prospectus is required to be delivered or made available by Credit Agricole under
the Securities Act or the Exchange Act in connection with the sale of Shares, the Company will,
prior to the Renewal Date, file, if it has not already done so, a new shelf registration statement
or, if applicable, an automatic shelf registration statement relating to the Shares, and, if such
registration statement is not an automatic shelf registration statement, will use its best efforts
to cause such registration statement to be declared effective within 180 days after the Renewal
Date, and will take all other reasonable actions necessary or appropriate to permit the public
offer and sale of the Shares to continue as contemplated in the expired registration statement
relating to the Shares. References herein to the “Registration Statement” shall include such new
shelf registration statement or automatic shelf registration statement, as the case may be.
8. Conditions to Credit Agricole’s Obligations. The obligations of Credit Agricole
hereunder with respect to a Placement will be subject to the continuing accuracy and completeness
of the representations and warranties made by the Company herein, to the performance by the Company
of its obligations hereunder, to the completion by Credit Agricole of a due diligence review
satisfactory to Credit Agricole in its reasonable judgment, and to the continuing satisfaction (or
waiver by Credit Agricole in its sole discretion) of the following additional conditions:
(a) Registration Statement Effective. The Registration Statement shall be effective
and shall be available for (i) all sales of Placement Shares issued pursuant to all prior Placement
Notices and (ii) the sale of all Placement Shares contemplated to be issued by any Placement
Notice.
(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
19
any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement
made in the Registration Statement or the 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 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, 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. Credit Agricole shall not have advised the
Company that the Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact that in Credit Agricole’s reasonable opinion is material, or
omits to state a fact that in Credit Agricole’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,
on a consolidated basis, in the authorized capital stock of the Company or any Material Adverse
Effect, or any development that could reasonably be expected to cause a Material Adverse Effect, or
any downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other
than asset backed securities) by any rating organization or a public announcement by any rating
organization that it has under surveillance or review its rating of any of the Company’s securities
(other than asset backed securities), the effect of which, in the case of any such action by a
rating organization described above, in the reasonable judgment of Credit Agricole (without
relieving the Company of any obligation or liability it may otherwise have), is so material as to
make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the
terms and in the manner contemplated in the Prospectus.
(e) Legal Opinions. Credit Agricole shall have received the opinions required to be
delivered pursuant to Section 7(o) on or before the date on which such delivery of such
opinions are required pursuant to Section 7(o).
(f) Comfort Letter. Credit Agricole shall have received the Comfort Letter required to
be delivered pursuant Section 7(p) on or before the date on which such delivery of such
Comfort Letter is required pursuant to Section 7(p).
(g) Representation Certificate. Credit Agricole shall have received the certificate
required to be delivered pursuant to Section 7(n) on or before the date on which delivery
of such certificate is required pursuant to Section 7(n).
(h) No Suspension. Trading in the Common Shares shall not have been suspended on the
Exchange.
(i) Other Materials. On each date on which the Company is required to deliver a
certificate pursuant to Section 7(n), the Company shall have furnished to Credit Agricole
such appropriate further information, certificates and documents as Credit Agricole may have
reasonably requested. All such opinions, certificates, letters and other documents shall have been
in compliance with the provisions hereof. The Company shall have furnished Credit Agricole with
such conformed copies of such opinions, certificates, letters and other documents as Credit
Agricole shall have reasonably requested.
20
(j) 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.
(k) Approval for Listing. The Placement Shares shall either have been (i) approved for
listing on the Exchange, subject only to notice of issuance, or (ii) the Company shall have filed
an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance of
any Placement Notice.
(l) No Termination Event. There shall not have occurred any event that would permit
Credit Agricole to terminate this Agreement pursuant to Section 11(a).
9. Indemnification and Contribution.
(a) Company Indemnification. The Company agrees to indemnify and hold harmless Credit
Agricole, the directors, officers, partners, employees and agents of Credit Agricole and each
person, if any, who (i) controls Credit Agricole within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, or (ii) is controlled by or is under common control with
Credit Agricole (a “Credit Agricole Affiliate”) from and against any and all losses,
claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses incurred in connection with, and any and all amounts paid
in settlement (in accordance with Section 9(c)) of, any action, suit or proceeding between
any of the indemnified parties and any indemnifying parties or between any indemnified party and
any third party, or otherwise, or any claim asserted), as and when incurred, to which Credit
Agricole, or any such person, may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly,
on (x) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any Free Writing Prospectus approved by the Company in accordance
with Section 7(v) hereof, or in any application or other document executed by or on behalf
of the Company or based on written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify the Shares under the securities laws thereof or filed with the
Commission, or (y) the omission or alleged omission to state in any such document a material fact
required to be stated in it or necessary to make the statements in it not misleading; provided,
however, that this indemnity agreement shall not apply to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Placement Shares pursuant to this
Agreement and is caused directly or indirectly by an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information relating to
Credit Agricole and furnished to the Company by Credit Agricole expressly for inclusion in any
document as described in clause (x) of this Section 9(a). This indemnity agreement will be
in addition to any liability that the Company might otherwise have.
(b) Credit Agricole Indemnification. Credit Agricole agrees to indemnify and hold
harmless the Company, its directors, each officer of the Company that signed the Registration
Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common
control with the Company (a “Company Affiliate”) from and against any and all losses,
claims, liabilities and expenses and damages described in the indemnity contained in Section
9(a), as and when incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
written information relating to Credit
21
Agricole and furnished to the Company by Credit Agricole expressly for inclusion in any document as
described in clause (x) of Section 9(a) or with respect to statements or omissions, or
alleged untrue statements or omissions, made in any Free Writing Prospectus used by Credit Agricole
and not previously approved by the Company in accordance with Section 7(w) hereof.
(c) Procedure. Any party that proposes to assert the right to be indemnified under
this Section 9 will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim is to be made against an indemnifying party under this
Section 9, notify such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party will not relieve
the indemnifying party from (i) any liability that it might have to any indemnified party otherwise
than under this Section 9 and (ii) any liability that it may have to any indemnified party
under the foregoing provision of this Section 9 unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party will be entitled to participate in and, to the extent that
it elects by delivering written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in addition to those
available to the indemnifying party, (iii) a conflict or potential conflict exists (based on advice
of counsel to the indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense of such action on
behalf of the indemnified party) or (iv) the indemnifying party has not in fact employed counsel to
assume the defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties. It is understood
that the indemnifying party shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more
than one separate firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent. No
indemnifying party shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 9 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or consent includes an
unconditional
release of each indemnified party from all liability arising or that may arise out of
such claim, action or proceeding.
(d) Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing paragraphs of this
Section 9 is applicable in accordance with its terms but for any reason is held to be
unavailable from the Company or Credit Agricole, the Company and Credit Agricole will contribute to
the total losses, claims, liabilities, expenses
22
and damages (including any investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Company from persons other than Credit
Agricole, such as persons who control the Company within the meaning of the Securities Act,
officers of the Company who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and Credit Agricole may be subject in
such proportion as shall be appropriate to reflect the relative benefits received by the Company on
the one hand, and Credit Agricole, on the other. The relative benefits received by the Company on
the one hand and Credit Agricole on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the sale of the Placement Shares (net of commissions to Credit Agricole
but before deducting expenses) received by the Company bear to the total compensation received by
Credit Agricole from the sale of Placement Shares on behalf of the Company. If, but only if, the
allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not only the relative
benefits referred to in the foregoing sentence but also the relative fault of the Company on the
one hand, and Credit Agricole, on the other, with respect to the statements or omission that
resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well
as any other relevant equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether the 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 on the one hand, or Credit Agricole, on the other, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and Credit Agricole agree that it would not be just
and equitable if contributions pursuant to this Section 9(d) were to be determined by pro
rata allocation or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above
in this Section 9(d) shall be deemed to include, for the purpose of this Section
9(d), any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim to the extent consistent with Section
9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), Credit
Agricole shall not be required to contribute any amount in excess of the commissions received by it
under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was
found not guilty of such fraudulent misrepresentation. For purposes of this Section 9(d),
any person who controls a party to this Agreement within the meaning of the Securities Act, and any
officers, directors, partners, employees or agents of Credit Agricole, will have the same rights to
contribution as that party, and each officer and director of the Company who signed the
Registration Statement will have the same rights to contribution as the Company, subject in each
case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice
of commencement of any action against such party in respect of which
a claim for contribution may
be made under this Section 9(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not relieve that party or parties
from whom contribution may be sought from any other obligation it or they may have under this
Section 9(d) except to the extent that the failure to so notify such other party materially
prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except
for a settlement entered into pursuant to the last sentence of Section 9(c) hereof, no
party will be liable for contribution with respect to any action or claim settled without its
written consent if such consent is required pursuant to Section 9(c) hereof.
23
10. Representations and Agreements to Survive Delivery. The indemnity and contribution
agreements contained in Section 9 of this Agreement and all representations and warranties
of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of Credit Agricole, any controlling
persons, or the Company (or any of their respective officers, directors or controlling persons),
(ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination
of this Agreement.
11. Termination.
(a) Credit Agricole shall have the right by giving notice as hereinafter specified at any time
to terminate this Agreement if (i) any Material Adverse Effect, or any development that has
actually occurred and that is reasonably expected to cause a Material Adverse Effect has occurred,
that, in the reasonable judgment of Credit Agricole, may materially impair the ability of Credit
Agricole to sell the Placement Shares hereunder; (ii) the Company shall have failed, refused or
been unable to perform any agreement on its part to be performed hereunder; provided, however, in
the case of any failure of the Company to deliver (or cause another person to deliver) any
certification, opinion, or letter required under Sections 7(n), 7(o), or
7(p), Credit Agricole’s right to terminate shall not arise unless such failure to deliver
(or cause to be delivered) continues for more than thirty (30) days from the date such delivery was
required; or (iii) any other condition of Credit Agricole’s obligations hereunder is not fulfilled;
or (iv), any suspension or limitation of trading in the Placement Shares or in securities generally
on the Exchange shall have occurred. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 7(h) (Expenses), Section 9
(Indemnification), Section 10 (Survival of Representations), Section 16 (Applicable
Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall remain in
full force and effect notwithstanding such termination.
(b) The Company shall have the right, by giving ten (10) days notice as hereinafter specified
to terminate this Agreement in its sole discretion at any time after the date of this Agreement.
Any such termination shall be without liability of any party to any other party except that the
provisions of Section 7(h), Section 9, Section 10, Section 16 and
Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(c) Credit Agricole shall have the right, by giving ten (10) days notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time after the date of this
Agreement. Any such termination shall be without liability of any party to any other party except
that the provisions of Section 7(h), Section 9, Section 10, Section
16 and Section 17 hereof shall remain in full force and effect notwithstanding such
termination.
(d) Unless earlier terminated pursuant to this Section 11, this Agreement shall
automatically terminate upon the issuance and sale of all of the Shares through Credit Agricole on
the terms and subject to the conditions set forth herein; provided that the provisions of
Section 7(h), Section 9, Section 10, Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 11(a), (b), (c), or (d) above or otherwise by mutual
agreement of the parties; provided, however, that any such termination by mutual agreement shall in
all cases be deemed to provide that Section 7(h), Section 9, Section 10,
Section 16 and Section 17 shall remain in full force and effect.
(f) Any termination of this Agreement shall be effective on the date of receipt of such notice
by Credit Agricole or the Company, as the case may be. If such termination shall occur prior to the
24
Settlement Date for any sale of Placement Shares, such Placement Shares shall settle in accordance
with the provisions of this Agreement.
12. Notices. All notices or other communications required or permitted to be given by
any party to any other party pursuant to the terms of this Agreement shall be in writing, unless
otherwise specified in this Agreement, and if sent to Credit Agricole, shall be delivered to Credit
Agricole at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, attention: Xxxxxxx Xxxx, fax no.
(000) 000-0000, and Xxxxx Xxxx LLP, One Metropolitan Square, 000 X. Xxxxxxxx Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000, fax no. (000) 000-0000, Attention: Xxxxxxx X. Xxxx; or if sent to the Company at
0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, attention: General Counsel, facsimile number
(000) 000-0000, with a copy to Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, Attention: Xxxxx X. Xxxxx III,
facsimile number (000) 000-0000. Each party to this Agreement may change such address for notices
by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York
City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business
Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight
courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid). For purposes of this Agreement,
“Business Day” shall mean any day on which the Exchange and commercial banks in the City of
New York are open for business.
13. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company and Credit Agricole and their respective successors and the affiliates,
controlling persons, officers and directors referred to in Section 9 hereof. References to
any of the parties contained in this Agreement shall be deemed to include the successors and
permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that
Credit Agricole may assign its rights and obligations hereunder to an affiliate of Credit Agricole
without obtaining the Company’s consent.
14. 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 Shares.
15. Entire Agreement; Amendment; Severability. This Agreement (including all schedules
and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes the entire
agreement and supersedes all prior and contemporaneous agreements and undertakings, both written
and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument executed by the Company
and Credit Agricole. In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a
court of competent jurisdiction, then such provision shall be given full force and effect to the
fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the
remainder of the terms and provisions hereof shall be in accordance with the intent of the parties
as reflected in this Agreement.
25
16. Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in
the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in
connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction
of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper, though neither party shall be precluded from removing an action
that is subject to removal from state to federal court. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to
such party at the address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law.
17. Waiver of Jury Trial. The Company and Credit Agricole each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based upon or arising out
of this Agreement or any transaction contemplated hereby.
18. Absence of Fiduciary Relationship. The Company agrees that:
(a) Credit Agricole has been retained solely to act as sales agent in connection with the sale
of the Shares that no fiduciary, advisory or agency relationship between the Company and Credit
Agricole has been created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether Credit Agricole has advised or is advising the Company on other matters;
(b) the Company is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Company has been advised that Credit Agricole and its affiliates are engaged in a
broad range of transactions which may involve interests that differ from those of the Company and
that Credit Agricole has no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship; and
(d) the Company waives, to the fullest extent permitted by law, any claims it may have against
Credit Agricole, for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that
Credit Agricole shall have no liability (whether direct or indirect) to the Company in respect of
such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right
of the Company including stockholders, partners, employees or creditors of the Company.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission.
20. Definitions. As used in this Agreement, “GAAP” means United States
generally accepted accounting principles.
[Remainder of Page Intentionally Blank]
26
If the foregoing correctly sets forth the understanding between the Company and
Credit Agricole, please so indicate in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement between the Company and Credit Agricole.
| Very truly yours, HEALTHCARE REALTY TRUST INCORPORATED |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| ACCEPTED as of the date first-above written: CREDIT AGRICOLE SECURITIES (USA) INC. |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Managing Director | |||
| CREDIT AGRICOLE SECURITIES (USA) INC. |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Director | |||
27
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From:
|
[ ] | |
Cc:
|
[ ] | |
To:
|
[ ] |
Subject: “At the Market” Equity Offering—Placement Notice
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Sales Agreement dated March
11, 2011 between HEALTHCARE REALTY TRUST INCORPORATED (the “Company”) and Credit Agricole
Securities (USA) Inc. (“Credit Agricole”) (the “Agreement”), I hereby request on
behalf of the Company that Credit Agricole sell up to [ ] shares of the Company’s common stock, par
value $0.01 per share, at a minimum market price of
$ per share.
SCHEDULE 2
CREDIT AGRICOLE SECURITIES (USA) INC.
Xxxxxxx Xxxx
|
xxxxxxx.xxxx@xx-xxx.xxx | |
Xxxxx Xxxx
|
xxxxx.xxxx@xx-xxx.xxx | |
Xxxxxxx Xxxxxxxx
|
xxxxxxx.xxxxxxxx@xxxx.xxx |
HEALTHCARE REALTY TRUST INCORPORATED
Xxxxx X. Emery
|
xxxxxx@xxxxxxxxxxxxxxxx.xxx | |
Xxxxx X. Xxxxxx
|
xxxxxxx@xxxxxxxxxxxxxxxx.xxx | |
Xxxxxxxxx X. Xxxxxxxx
|
xxxxxxxxx@xxxxxxxxxxxxxxxx.xxx | |
Xxxx X. Xxxxxx, Xx.
|
xxxxxxx@xxxxxxxxxxxxxxxx.xxx | |
B. Xxxxxxx Xxxxxxx, XX
|
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx | |
Xxxxxx X. Xxxxx
|
xxxxxx@xxxxxxxxxxxxxxxx.xxx |
SCHEDULE 3
Compensation
Credit Agricole shall be paid compensation up to two percent (2.0%) of the gross proceeds from the
sales of the Shares.
SCHEDULE 6(ee)
Clive Wellness Campus Building One, LLC
HR Acquisition I Corporation
HR Acquisition of San Antonio, Ltd.
HR Acquisition of Pennsylvania, Inc.
HR of Carolinas, LLC
HR of Indiana, LLC
HR of Iowa, LLC
HR of Los Angeles, Ltd.
HR MAC II, LLC
HR-Pima, LLC
HRT of Illinois, Inc.
HRT of Roanoke, Inc.
HRT of Tennessee Inc.
HRT Properties of Texas, Ltd.
Pennsylvania HRT, Inc.
Roseburg Surgery Center, LLC
Xxxxxxx Pavilion, LLC
Yakima Valley Subsidiary, LLC
HR Acquisition I Corporation
HR Acquisition of San Antonio, Ltd.
HR Acquisition of Pennsylvania, Inc.
HR of Carolinas, LLC
HR of Indiana, LLC
HR of Iowa, LLC
HR of Los Angeles, Ltd.
HR MAC II, LLC
HR-Pima, LLC
HRT of Illinois, Inc.
HRT of Roanoke, Inc.
HRT of Tennessee Inc.
HRT Properties of Texas, Ltd.
Pennsylvania HRT, Inc.
Roseburg Surgery Center, LLC
Xxxxxxx Pavilion, LLC
Yakima Valley Subsidiary, LLC
Exhibit 7(n)
OFFICER CERTIFICATE
The undersigned, the duly qualified and elected of HEALTHCARE REALTY
TRUST INCORPORATED (the “Company”), a Maryland corporation, does hereby certify in such
capacity and on behalf of the Company, pursuant to Section 7(n) of the Sales Agreement
dated March 11, 2011 (the “Sales Agreement”) between the Company and Credit Agricole
Securities (USA) Inc., that to the best of the knowledge of the undersigned:
(i) The representations and warranties of the Company in Section 6 of the Sales Agreement
(A) to the extent such representations and warranties are subject to qualifications and exceptions
contained therein relating to materiality or Material Adverse Effect, 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 in all material
respects as of such date; and
(ii) The Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
| By: | ||||
| Name: | ||||
| Title: | ||||
| Date: | ||||
