Common Stock ($0.01 par value) ATM EQUITY OFFERINGSM SALES AGREEMENT
EXHIBIT
1.1
Home Properties, Inc.
Common
Stock
($0.01
par value)
ATM
EQUITY OFFERINGSM
SALES AGREEMENT
December
3, 2009
XXXXXXX
XXXXX & CO.
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
BMO
Capital Markets Corp.
c/o
Merrill
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxx
Xxxxxx Xxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Home
Properties, Inc., a Maryland corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell from time
to time to or through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(“Xxxxxxx
Xxxxx”), as sales agent and/or principal, or BMO Capital Markets Corp.
(“BMO”), as
sales agent and/or principal (each an “Agent”, and together
the “Agents”),
up to 3,700,000 shares (the “Shares”) of the Company’s common
stock, $0.01 par value (the “Common Stock”), on
the terms and subject to the conditions set forth in this ATM Equity
OfferingSM
Sales Agreement (the “Agreement”). The
Company agrees that whenever it determines to sell Shares directly to either
Agent as principal, it will enter into a separate agreement (each, a “Terms Agreement”) in
substantially the form of Annex I hereto, relating to such sale in accordance
with Section 3 of this Agreement.
Section
1. Representations and
Warranties. The Company represents and warrants to the Agents
that as of the date of this Agreement, each Registration Statement Amendment
Date (as defined in Section 3 below), each Company Periodic Report Date (as
defined in Section 3 below), each Company Earnings Report Date (as defined
in Section 3 below), (to the extent the conditions of Section 2 (j) are
applicable), each Request Date (as defined in Section 3 below), each
Applicable Time (as defined in Section 1(c) below) and each Settlement Date
(as defined in Section 2 below):
(a) Compliance with Registration
Requirements. The Company has filed with the Securities and
Exchange Commission (the “Commission”) an
“automatic shelf registration statement” as defined under Rule 405 under
the Securities Act of 1933, as amended (the “1933 Act”), on
Form S-3 (File No. 333-141879), in respect of the Company’s Common
Stock (including the Shares) (collectively, the “Securities”) not
earlier than three years prior to the date hereof; such registration statement,
and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the Commission, and
no notice of objection of the Commission to the use of such form of registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the 1933 Act has been received by the Company
(the base prospectus filed as part of such registration statement, in the form
in which it has most recently been filed with the Commission on or prior to the
date of this Agreement, is hereinafter called the “Basic Prospectus”;
the various parts of such registration statement, excluding any Form T-1
but including all other exhibits thereto and any prospectus supplement or
prospectus relating to the Shares that is filed with the Commission and deemed
by virtue of Rule 430B under the 1933 Act to be part of such
registration statement, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called the
“Registration
Statement”; the prospectus supplement specifically relating to the Shares
prepared and filed with the Commission pursuant to Rule 424(b) under the
1933 Act is hereinafter called the “Prospectus
Supplement”; the Basic Prospectus, as amended and supplemented by the
Prospectus Supplement, is hereinafter called the “Prospectus”; any
reference herein to the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
1933 Act; any reference to any amendment or supplement to the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer
to and include any post-effective amendment to the Registration Statement, any
prospectus supplement or base prospectus relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the 1933 Act and any
documents filed under the Securities Exchange Act of 1934, as amended (the
“1934 Act”), and
incorporated therein, in each case after the date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, including any amendments or supplements
thereto, as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any documents filed under the
1934 Act after the date of this Agreement and incorporated by reference in
the Registration Statement; and any “issuer free writing prospectus” as defined
in Rule 433 under the 1933 Act relating to the Shares that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show”
that is a “written communication” within the meaning of Rule 433(d)(8)(i)
whether or not required to be filed with the Commission or (iii) is exempt from
filing pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms is
hereinafter called an “Issuer Free Writing
Prospectus”).
No order
preventing or suspending the use of the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Issuer Free Writing Prospectus has been issued
by the Commission, and the Basic Prospectus and the Prospectus Supplement, at
the time of filing thereof, conformed in all material respects to the
requirements of the 1933 Act and the rules and regulations of the
Commission thereunder (the “1933 Act
Regulations”) and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
For the
purposes of this Agreement, the “Applicable Time”
means, with respect to any Shares, the time of sale of such Shares pursuant to
this Agreement; the Prospectus and the applicable Issuer Free Writing
Prospectus(es) issued at or prior to such Applicable Time, taken together
(collectively, and, with respect to any Shares, together with the public
offering price of such Shares, the “General Disclosure
Package”) as of each Applicable Time and each Settlement Date, will not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each applicable
Issuer Free Writing Prospectus will not conflict with the information contained
in the Registration Statement, the Prospectus Supplement or the Prospectus and
each such Issuer Free Writing Prospectus, as supplemented by and taken together
with the General Disclosure Package as of such Applicable Time, will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Incorporation of Documents
by Reference. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
complied in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations, and, when read together with the other
information in the Prospectus, (a) at the time the Registration Statement
became effective, (b) at the time the Prospectus was issued and (c) on
the date of this Agreement, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) Independent
Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are
an independent registered public accounting firm with respect to the Company and
its subsidiaries as required by the 1933 Act and the 1933 Act
Regulations.
(d) Financial
Statements. The financial statements included or incorporated
by reference in the Registration Statement, the General Disclosure Package and
the Prospectus, together with the related schedules and notes, present fairly
the financial position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, stockholders’ equity and
comprehensive income and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved (except for changes permitted
or required by GAAP). The supporting schedules, if any, present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included or incorporated by reference in the Registration
Statement. All disclosures contained in the Registration Statement,
the General Disclosure Package or the Prospectus, or incorporated by reference
therein, regarding “non-GAAP financial measures” (as such term is defined by the
rules and regulations of the Commission) comply with Regulation G of the
1934 Act and Item 10 of Regulation S-K of the 1933 Act, to
the extent applicable, in all material respects.
(e) No Material Adverse Change
in Business. Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure
Package or the Prospectus, except as otherwise disclosed therein: (A) there
has been no material adverse change in the condition, financial or otherwise, or
in the results of operations or business affairs or business prospects of the
Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries
taken as a whole, and (C) except for regular
quarterly dividends on the Common Stock in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(f) Good Standing of the
Company. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its organization and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(g) Good Standing of
Subsidiaries. Each “significant subsidiary” of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has
been duly organized and is validly existing as a corporation, limited liability
company or limited partnership in good standing (to the extent such concept is
applicable) under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock, ownership interests or partnership
interests, as the case may be, of each such Subsidiary has been duly authorized
and validly issued, in the case of capital stock is fully paid and
non-assessable, and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary. The only Subsidiaries of the
Company are the subsidiaries listed on Schedule 1 to this
Agreement.
(h) Capitalization. The
shares of issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock was issued in violation of the preemptive or other
similar rights of any securityholder of the Company. The Company’s
Common Stock has been registered pursuant to Section 12(b) of the
1934 Act and is listed on the New York Stock Exchange (the “NYSE”), and the
Company has taken no action designed to terminate, or likely to have the effect
of terminating, the registration of the Common Stock under the 1934 Act or
delisting the Common Stock from the NYSE, nor has the Company received any
written notification that the Commission or the NYSE is contemplating
terminating such registration or listing.
(i) Authorization of
Agreement. This Agreement and any Terms Agreement has been
duly authorized, executed and delivered by the Company.
(j) Authorization and
Description of Securities. The Shares have been duly
authorized and reserved for issuance and sale pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement or any Terms
Agreement against payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the Prospectus and the specimen
evidencing such shares conforms with applicable law (including the requirements
of the NYSE), under Maryland law or the Company’s charter or by-laws, no holder
of the Shares will be subject to personal liability by reason of being such a
holder; and the issuance of the Shares is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(k) Absence of Defaults and
Conflicts. Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any subsidiary is subject
(collectively, “Agreements and
Instruments”) except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of this
Agreement or of any Terms Agreement and the consummation of the transactions
contemplated herein or in any Terms Agreement and in the Registration Statement
(including the issuance and sale of the Shares and the use of the proceeds from
the sale of the Shares as described in the Prospectus under the caption “Use of
Proceeds”) and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations. As used
herein, a “Repayment Event” means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(l) Absence of Labor
Dispute. No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent which
would result in a Material Adverse Effect.
(m) Absence of
Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which, individually or in the aggregate, if determined adversely to
the Company or any of its subsidiaries would reasonably likely to have a
Material Adverse Effect, or materially and adversely affect the consummation of
the transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder.
(n) Accuracy of
Exhibits. There are no contracts or documents which are
required: (i) to be described in the Registration Statement or, the Prospectus
or the documents incorporated by reference therein or, (ii) to be filed as
exhibits thereto which have not been so described and filed as
required.
(o) Possession of Intellectual
Property. The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any written notice
or is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(p) Absence of Further
Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or any Terms Agreement, except such
as have been already obtained or as may be required under the 1933 Act, the
1933 Act Regulations, the 1934 Act, or applicable state securities
laws.
(q) Absence of
Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or
indirectly, any action which is designed to or which has constituted or which
would be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares in contravention of applicable law.
(r) Possession of Licenses and
Permits. The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental
Licenses”) issued by the appropriate federal, state or local regulatory
agencies or bodies necessary to conduct the business now operated by them,
except where the failure so to possess would not, individually or in the
aggregate result in a Material Adverse Effect.
(s) Title to
Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries
and good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, individually or in the aggregate, materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries.
(t) Investment Company
Act. The Company is not required, and upon the issuance and of
the Shares as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be required, to register as an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended (the “1940
Act”).
(u) Environmental
Laws. Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation
of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”),
(B) the Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending, or to the
knowledge of the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events
or circumstances that the Company reasonably expects to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the Company
or any of its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(v) Registration
Rights. Except for certain registration rights granted to the
holders of the Company’s 4.125% Exchangeable Senior Notes (the “Senior Notes”) and to
holders of limited partnership units in Home Properties, L.P., no holders of
securities of the Company have rights to the registration of such securities
under the Registration Statement or to otherwise require registration of
securities under the 1933 Act.
(w) Accounting Controls and
Disclosure Controls. The Company and its subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable
assurances that: (A) transactions are executed in accordance with
management’s general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Except as described in the
Prospectus, since the end of the Company’s most recent audited fiscal year,
there has been (1) no material weakness in the Company’s internal control
over financial reporting (whether or not remediated) and (2) no change in
the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
The
Company and its subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and communicated to the
Company’s management, including its principal executive officer or officers and
principal financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(x) Well-Known Seasoned
Issuer. (A)(i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 1933 Act (whether
such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus), and (iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) under the
0000 Xxx) made any offer relating to the Shares in reliance on the
exemption of Rule 163 under the 1933 Act, the Company was a
“well-known seasoned issuer” as defined in Rule 405 under the
1933 Act; and (B) at the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the
0000 Xxx) of the Shares, the Company was not an “ineligible issuer” as
defined in Rule 405 under the 1933 Act.
(y) No
Commissions. Neither the Company nor any of its subsidiaries
is a party to any contract, agreement or understanding with any person, other
than as contemplated by this Agreement, that would give rise to a valid claim
against the Company or any of its subsidiaries or the Agents for a brokerage
commission, finder’s fee or like payment in connection with the offering and
sale of the Shares.
(z) Actively-Traded
Security. The Common Stock is an “actively-traded security”
exempted from the requirements of Rule 101 of Regulation M under the
1934 Act by subsection (c)(1) of such rule.
(aa) Deemed
Representation. Any certificate signed by any officer of the
Company delivered to the Agents or to counsel for the Agents pursuant to or in
connection with this Agreement or any Terms Agreement shall be deemed a
representation and warranty by the Company to the Agents as to the matters
covered thereby as of the date or dates indicated in such
certificate.
(bb) Compliance with the
Xxxxxxxx-Xxxxx Act. There is and has been no failure on the
part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906
related to certifications.
(cc) Payment of
Taxes. 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, state, local or other law except insofar as the failure to file such
returns would not result in a Material Adverse Effect, and has paid all taxes
due pursuant to such returns or pursuant to any assessment received by the
Company and its subsidiaries, 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 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, except to the extent
of any inadequacy that would not result in a Material Adverse Effect to the
extent required by GAAP.
(dd) REIT
Status. Starting with its taxable year ended December 31,
1994, the Company has elected under Section 856(c) of the Internal Revenue
Code of 1986, as amended (the “Code”), to be taxed as a real estate investment
trust (“REIT”), and such election has not been revoked or
terminated. The Company has qualified as a REIT for its taxable years
ended December 31, 1994 through December 31, 2008 and the Company has
operated and intends to continue to operate so as to qualify as a REIT
thereafter.
(ee) Title
Insurance. The Company or its subsidiaries have title
insurance on each of the Portfolio Properties in an amount at least equal to the
cost of acquisition of such Portfolio Property except, in each case, where the
failure to maintain such title insurance would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business.
(ff) Mortgages and Deeds of
Trust. The mortgages and deeds of trust encumbering the
Portfolio Properties are not convertible into equity and neither the Company nor
any of its subsidiaries holds a participating interest therein and said
mortgages and deeds of trust are not cross-defaulted or cross-collateralized to
any property not owned by the Company or its subsidiaries.
(gg) Insurance. The
Company and its subsidiaries carry or are entitled to the benefits of insurance,
with financially sound and reputable insurers, in such amounts and covering such
risks as is generally maintained by companies of established repute engaged in
the same or similar business subject to customary retainages and deductibles,
and all such insurance is in full force and effect. The Company has
no reason to believe that it or any subsidiary will not be able (A) to
renew its existing insurance coverage as and when such policies expire or
(B) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost
that would not result in a material adverse change. Neither of the
Company nor any subsidiary has been denied any insurance coverage which it has
sought or for which it has applied.
(hh) Statistical and
Market-Related Data. Any statistical and market-related data
included in the Registration Statement and the Prospectus are based on or
derived from sources that the Company believes to be reliable and
accurate.
(ii) Foreign Corrupt Practices
Act. Neither the Company nor, to the knowledge of the Company,
any director, officer, agent, employee, affiliate or other person acting on
behalf of the Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons
of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company and, to the knowledge of
the Company, its affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(jj) Money Laundering
Laws. The operations of the Company are and have been
conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules
and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering
Laws”) except where the failure to comply therewith would not have a
Material Adverse Effect; and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company with respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(kk) OFAC. Neither
the Company nor, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or person acting on behalf of the Company 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
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
Section
2. Sale and Delivery of
Shares.
(a) Subject
to the terms and conditions set forth herein, the Company agrees to issue and
sell through the Agents acting as sales agents or directly to the Agents acting
as principals from time to time, and each Agent agrees to use its commercially
reasonable efforts to sell as sales agent for the Company, the
Shares. Sales of the Shares, if any, through either Agent acting as
sales agent or directly to either Agent acting as principal will be made by
means of ordinary brokers’ transactions on the NYSE which meet the definition of
an “at the market” offering under Rule 415(a)(4) at market prices prevailing at
the time of sale, or, if agreed by the Company in writing, at prices related to
prevailing market prices or at negotiated prices.
(b) The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the
Company and the Agent, through whom the sale of Shares are effected on that day,
on any trading day (other than a day on which the NYSE is scheduled to close
prior to its regular weekday closing time, each, a “Trading Day”) that
the Company has satisfied its obligations under Section 6 of this Agreement
and that the Company has instructed such Agent to make such sales. On
any Trading Day, the Company shall sell Shares through only one of the Agents,
but in no event through both, and the Company shall give at least one business
day prior written notice by telecopy or email to the Agents to notify any change
of the Agent through whom the sale of Shares will be effected. The
requirement that the Company sell Shares through only one of the Agents on any
Trading Day shall not apply to sales solely to employees or security holders of
the Company or its subsidiaries, or to a trustee or other person acquiring such
securities for the accounts of such persons in which either Xxxxxxx Xxxxx or BMO
is acting for the Company in a capacity other than as Agent under this
Agreement. On any Trading Day, the Company may instruct the Agent
through whom the sale of Shares are effected on that day by telephone (confirmed
promptly by facsimile or email, which confirmation will be promptly acknowledged
by such Agent) as to the maximum number of Shares to be sold by the Agent on
such day (in any event not in excess of the number available for issuance under
the Prospectus and the currently effective Registration Statement) and the
minimum price per Share at which such Shares may be sold. Subject to
the terms and conditions hereof, the Agents shall use their commercially
reasonable efforts to sell as sales agent all of the Shares so designated by the
Company. The Company and each of the Agents acknowledge and agree
that (A) there can be no assurance that the Agents will be successful in selling
the Shares, (B) the Agents will incur no liability or obligation to the Company
or any other person or entity if it does not sell Shares for any reason other
than a failure by either Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable law and
regulations to sell such Shares as required by this Agreement, and (C) neither
Agent shall be under any obligation to purchase Shares on a principal basis
except as otherwise specifically agreed by an Agent and the Company pursuant to
a Terms Agreement. In the event of a conflict between the terms of
this Agreement and the terms of a Terms Agreement, the terms of such Terms
Agreement will control.
(c) Notwithstanding
the foregoing, the Company shall not authorize the offer, issuance and/or sale
of, and the Agents as sales agents shall not be obligated to use their
commercially reasonable efforts to sell, any Shares: (i) at a price lower than
the minimum price therefor authorized from time to time, or (ii) in a number or
with an aggregate gross sales price in excess of the number or gross sales
price, as the case may be, of Shares authorized from time to time to be offered,
issued and sold under this Agreement, in each case, by the Company’s board of
directors, or a duly authorized committee thereof, or in a number in excess of
the number of Shares approved for listing on the NYSE, and in each case notified
to the Agents in writing. In addition, the Company or the Agents may,
upon notice to the other party hereto by telephone (confirmed promptly by
facsimile or email, which confirmation will be promptly acknowledged), suspend
the offering of the Shares with respect to which the Agents are acting as sales
agent for any reason and at any time; provided, however, that such
suspension or termination shall not affect or impair the parties’ respective
obligations with respect to the Shares sold hereunder prior to the giving of
such notice.
(d) The gross
sales price of any Shares sold pursuant to this Agreement by the Agent acting as
sales agent of the Company shall be the actual sales price for such Shares,
which may be the market price prevailing at the time of sale for shares of the
Company’s Common Stock sold by the Agent on the NYSE or otherwise, at prices
relating to prevailing market prices or at negotiated prices, as agreed between
the Company and either Agent. The compensation payable to either
Agent for sales of Shares with respect to which such Agent acts as sales agent
in an “at-the-market” transaction shall be up to 2% of the gross sales price of
the Shares sold pursuant to this Agreement. The Company may sell
Shares to the Agents as principal at a price agreed upon at the relevant
Applicable Time and pursuant to a separate Terms Agreement. The remaining
proceeds, after further deduction for any transaction fees, transfer taxes or
similar taxes or fees imposed by any governmental, regulatory or self-regulatory
organization in respect of such sales, shall constitute the net proceeds to the
Company for such Shares (the “Net
Proceeds”). The Agents shall notify the Company as promptly as
practicable if any deduction referenced in the preceding sentence will be
required. Notwithstanding the foregoing, in the event the Company
engages either Agent for a sale of Shares that would constitute a
“distribution,” within the meaning of Rule 100 of Regulation M under the
1934 Act, the Company and such Agent will agree to compensation that is
customary for such Agent with respect to such transactions.
(e) If acting
as sales agent hereunder, the Agent through whom sales are effected shall
provide written confirmation to the Company following the close of trading on
the NYSE each day in which Shares are sold under this Agreement setting forth
the number of Shares sold on such day, the aggregate gross sales proceeds of the
Shares, the aggregate Net Proceeds to the Company and the aggregate compensation
payable by the Company to such Agent with respect to such sales.
(f) Under no
circumstances shall any Shares with respect to which the Agents act as sales
agent be sold at a price lower than the minimum price therefor authorized from
time to time by the Company’s board of directors, or a duly authorized committee
thereof, and notified to the Agents in writing.
(g) If
Company or either Agent believes that the exemptive provisions set forth in
Rule 101(c)(1) of Regulation M under the 1934 Act (applicable to
securities with an average daily trading volume of $1,000,000 that are issued by
an issuer whose common equity securities have a public float value of at least
$150,000,000) are not satisfied with respect to the Company or the Shares, it
shall promptly notify the other parties and sales of Shares under this Agreement
and any Terms Agreement shall be suspended until that or other exemptive
provisions have been satisfied in the judgment of each party.
(h) Settlement
for sales of Shares pursuant to this Section 2 will occur on the third
business day that is also a Trading Day following the trade date on which such
sales are made, unless another date shall be agreed to by the Company and the
Agent selling such Shares (each such day, a “Settlement
Date”). On each Settlement Date, the Shares sold through an
Agent for settlement on such date shall be delivered by the Company to such
Agent against payment of the Net Proceeds from the sale of such
Shares. Settlement for all Shares shall be effected by book-entry
delivery of Shares to such Agent’s account at The Depository Trust Company
against payments by such Agent of the Net Proceeds from the sale of such Shares
in same day funds delivered to an account designated by the
Company. If the Company shall default on its obligation to deliver
Shares on any Settlement Date, the Company shall: (i) indemnify and hold
the Agent selling such Shares harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (ii) pay such Agent
any commission to which it would otherwise be entitled absent such
default. In no event shall the Company be obligated to deliver Shares
to an Agent unless the Company shall have received payment of the Net Proceeds
for the Shares sold on any Settlement Date prior to or simultaneously with the
delivery of such Shares.
(i) Notwithstanding
any other provision of this Agreement, the Company shall not offer, sell or
deliver, or request the offer or sale, any Shares and, by notice to the Agents
given by telephone (confirmed promptly by telecopy or email), shall cancel any
instructions for the offer or sale of any Shares, and the Agents shall not be
obligated to offer or sell any Shares, (i) during any period in which the
Company’s xxxxxxx xxxxxxx policy, as it exists on the date of the Agreement,
would prohibit the purchases or sales of the Company’s Common Stock by its
officers or directors, (ii) during any other period in which the Company is
in possession of material non-public information or (iii) except as
provided in Section 2(j) below, at any time from and including the date
(each, an “Announcement Date”)
on which the Company shall issue a press release containing, or shall otherwise
publicly announce, its earnings, revenues or other results of operations (each,
an “Earnings
Announcement”) through and including the time that is 24 hours after
the time that the Company files (a “Filing Time”) a
Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that
includes consolidated financial statements as of and for the same period or
periods, as the case may be, covered by such Earnings Announcement.
(j) If the
Company wishes to offer, sell or deliver Shares at any time during the period
from and including an Announcement Date through and including the time that is
24 hours after the corresponding Filing Time, the Company shall:
(i) prepare and deliver to the Agents (with a copy to counsel to the
Agents) a Current Report on Form 8-K which shall include substantially the
same financial and related information as was set forth in the relevant Earnings
Announcement (other than any earnings projections, similar forward-looking data
and officers’ quotations) (each, an “Earnings 8-K”),
in form and substance reasonably satisfactory to the Agents, and obtain the
consent of the Agents to the filing thereof (such consent not to be unreasonably
withheld), (ii) provide the Agents with the officers’ certificate,
accountants’ letter and opinions and letters of counsel called for by
Sections (3)(j), (k) and (l) hereof; respectively, (iii) afford the
Agents the opportunity to conduct a due diligence review in accordance with
Section 3(o) hereof and (iv) file such Earnings 8-K with the
Commission, then the provisions of clause (iii) of Section 2(i) shall
not be applicable for the period from and after the time at which the foregoing
conditions shall have been satisfied (or, if later, the time that is
24 hours after the time that the relevant Earnings Announcement was first
publicly released) through and including the time that is 24 hours after
the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual
Report on Form 10-K, as the case may be. For purposes of clarity, the
parties hereto agree that (A) the delivery of any officers’ certificate,
accountants’ letter and opinions and letters of counsel pursuant to this
Section 2(j) shall not relieve the Company from any of its obligations
under this Agreement with respect to any Quarterly Report on Form 10-Q or
Annual Report on Form 10-K, as the case may be, including, without
limitation, the obligation to deliver officers’ certificates, accountants’
letters and legal opinions and letters as provided in Section 3 hereof and
(B) this Section 2(j) shall in no way affect or limit the operation of
the provisions of clauses (i) and (ii) of Section 2(i), which shall
have independent application.
(k) At each
Applicable Time, Settlement Date, Registration Amendment Date, Company Periodic
Report Date, Company Earnings Report Date and Request Date, the Company shall be
deemed to have affirmed each representation and warranty contained in this
Agreement. Any obligation of the Agents to use their commercially
reasonable efforts to sell the Shares on behalf of the Company as sales agent
shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 6 of this Agreement.
Section
3. Covenants. The
Company agrees with the Agents:
(a) During
any period when the delivery of a prospectus is required in connection with the
offering or sale of Shares (whether physically or through compliance with
Rule 153 or 172, or in lieu thereof, a notice referred to in
Rule 173(a) under the 1933 Act), (i) to make no further amendment
or any supplement to the Registration Statement or the Prospectus prior to any
Settlement Date which shall be disapproved by the Agents promptly after
reasonable notice thereof and to advise the Agents, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus
has been filed and to furnish the Representatives with copies thereof,
(provided, however, the Company may file such prospectus supplements to its
Registration Statement on Form S-3 (No. 333-141879) without notice to or consent
of the Agents to the extent required under the registration rights agreement
with respect to the Company’s 4.125% Exchangeable Senior Notes), (ii) to
file promptly all other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the 1933 Act, (iii) to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, (iv) to advise
the Agents, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Prospectus or other prospectus in respect of the Shares, of any notice of
objection of the Commission to the use of the form of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the 1933 Act, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the form of the Registration Statement or the
Prospectus or for additional information, and (v) in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of the Prospectus in respect of the Shares or suspending any such
qualification, to promptly use its commercially reasonable efforts to obtain the
withdrawal of such order; and in the event of any such issuance of a notice of
objection, promptly to take such reasonable steps as may be necessary to permit
offers and sales of the Shares by the Agents, which may include, without
limitation, amending the Registration Statement or filing a new registration
statement, at the Company’s expense (references herein to the Registration
Statement shall include any such amendment or new registration
statement).
(b) Promptly
from time to time to take such action as the Agents may reasonably request to
qualify the Shares for offering and sale under the securities laws of such
jurisdictions as the Agents may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the sale of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction; and to promptly advise the Agents of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(c) During
any period when the delivery of a prospectus is required (whether physically or
through compliance with Rules 153 or 172, or in lieu thereof, a notice
referred to in Rule 173(a) under the 0000 Xxx) in connection with the
offering or sale of Shares, the Company will make available to the Agents, as
soon as practicable after the execution of this Agreement, and thereafter from
time to time furnish to the Agents, copies of the most recent Prospectus in such
quantities and at such locations as the Agents may reasonably request for the
purposes contemplated by the 1933 Act. During any period when
the delivery of a prospectus is required (whether physically or through
compliance with Rules 153 or 172, or in lieu thereof, a notice referred to
in Rule 173(a) under the 0000 Xxx) in connection with the offering or
sale of Shares, and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the 1934 Act any document
incorporated by reference in the Prospectus in order to comply with the
1933 Act or the 1934 Act, to notify the Agents and to file such
document and to prepare and furnish without charge to the Agents as many written
and electronic copies as the Agents may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(d) To make
generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the 1933 Act), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the 1933 Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
(e) To pay
the required Commission filing fees relating to the Shares within the time
required by Rule 456(b)(1) under the 1933 Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
under the 1933 Act.
(f) To use
the Net Proceeds received by it from the sale of the Shares pursuant to this
Agreement and any Terms Agreement in the manner specified in the Disclosure
Package.
(g) In
connection with the offering and sale of the Shares, the Company will file with
the NYSE all documents and notices, and make all certifications, required by the
NYSE of companies that have securities that are listed on the NYSE and will
maintain such listing.
(h) To not
take, directly or indirectly, any action designed to cause or result in, or that
has constituted or might reasonably be expected to constitute, under the
1934 Act or otherwise, the stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the
Shares.
(i) At each
Applicable Time, each Settlement Date, each Registration Statement Amendment
Date (as defined below), each Company Earnings Report Date (as defined below),
each Request Date and each Company Periodic Report Date (as defined below) and
each date on which Shares are delivered to the Agent pursuant to a Terms
Agreement, the Company shall be deemed to have affirmed each representation,
warranty, covenant and other agreement contained in this Agreement or any Terms
Agreement. In each Annual Report on Form 10-K or Quarterly
Report on Form 10-Q filed by the Company in respect of any quarter in which
sales of Shares were made by or through the Agents under this Agreement or any
Terms Agreement (each date on which any such document is filed, and any date on
which an amendment to any such document is filed, a “Company Periodic Report
Date”), the Company shall set forth with regard to such quarter the
number of Shares sold through the Agents under this Agreement or any Terms
Agreement, the Net Proceeds received by the Company and the compensation paid by
the Company to the Agents with respect to sales of Shares pursuant to this
Agreement or any Terms Agreement.
(j) Upon
commencement of the offering of Shares under this Agreement and each time Shares
are delivered to either Agent as principal on a Settlement Date and promptly
after each: (i) date the Registration Statement or the Prospectus shall be
amended or supplemented (other than (1) by an amendment or supplement
providing solely for the determination of the terms of the Shares, (2) in
connection with the filing of a prospectus supplement that contains solely the
information set forth in Section 3(i), (3) in connection with the
filing of any current reports on Form 8-K (other than an Earnings 8-K
and any other current reports on Form 8-K which contain financial
information, financial statements, supporting schedules or other financial data,
including any current report on Form 8-K under Item 2.02 of such form
that is considered “filed” under the 0000 Xxx) or (4) by a prospectus
supplement relating to the offering of other securities (including, without
limitation, other shares of Common Stock)) (each such date, a “Registration Statement
Amendment Date”),and (ii) date on which an Earnings 8-K shall
be filed with the Commission as contemplated by Section 2(j) hereof (a “Company Earnings Report
Date”) and (iii) Company Periodic Report Date, and promptly after
each reasonable request by either Agent (each date of any such request by an
Agent, a “Request
Date”) (each of the date of the commencement of the offering of Shares
under this Agreement, each such Settlement Date and each Registration Statement
Amendment Date, Company Earnings Report Date, Company Periodic Report Date and
Request Date is hereinafter called a “Representation
Date”), the Company will furnish or cause to be furnished to
the Agents (with a copy to counsel to the Agents) a certificate the date of
delivery thereof to the Agents (or, in the case of an amendment or supplement to
the Registration Statement or the Prospectus (including, without limitation, by
the filing of any document under the 1934 Act that is incorporated by
reference therein), the date of the effectiveness of such amendment to the
Registration Statement or the date of filing with the Commission of such
supplement or incorporated document, as the case may be), in form and substance
reasonably satisfactory to the Agents and their counsel, stating (i) with
respect to the certificate referred to in Section 6(e)(i), the number of shares
and gross dollar amount remaining outstanding and (ii) that the statements
contained in the certificate referred to in Section 6(e)(ii) of this
Agreement which was last furnished to the Agent are true and correct as of the
date of such certificate as though made at and as of the date of such
certificate (except that such statements shall be deemed to relate to the
Registration Statement, the Prospectus and the General Disclosure Package as
amended and supplemented to the date of such certificate) or, in lieu of such
certificate, a certificate of the same tenor as the certificates referred to in
Section 6(e), but modified as necessary to relate to the Registration
Statement, the Prospectus and the General Disclosure Package as amended and
supplemented to the date of such certificate and to state the number of shares
and gross dollar amount remaining outstanding. As used in this
paragraph, to the extent there shall be an Applicable Time on or following the
applicable Representation Date, “promptly” shall be deemed to be on or prior to
the next succeeding Applicable Time.
(k) Upon
commencement of the offering of Shares under this Agreement and each time the
Shares are delivered to either Agent as principal on a Settlement Date, and
promptly after each other Representation Date, the Company will furnish or cause
to be furnished to the Agents (with a copy to counsel to the Agent) the written
opinion and letter of each counsel to the Company (who shall be reasonably
acceptable to the Agents), dated the date of delivery thereof to the Agents (or,
in the case of an amendment or supplement to the Registration Statement or the
Prospectus (including, without limitation, by the filing of any document under
the 1934 Act that is incorporated by reference therein), the date of the
effectiveness of such amendment to the Registration Statement or the date of
filing with the Commission of such supplement or incorporated document, as the
case may be), in form and substance reasonably satisfactory to the Agents and
their counsel, of the same tenor as the opinions and letters referred to in
Section 6(c) of this Agreement, but modified as necessary to relate to the
Registration Statement, the Prospectus and the General Disclosure Package as
amended and supplemented to the date of such opinion and letter or, in lieu of
any such opinion and letter, counsel last furnishing such opinion and letter to
the Agents shall furnish the Agents (with a copy to counsel for the Agents) with
a letter substantially to the effect that the Agents may rely on such counsel’s
last opinion and letter to the same extent as though each were dated the date of
such letter authorizing reliance (except that statements in such last opinion
and letter shall be deemed to relate to the Registration Statement, the
Prospectus and the General Disclosure Package as amended and supplemented to the
date of such letter authorizing reliance). As used in this paragraph, to the
extent there shall be an Applicable Time on or following the applicable
Representation Date, “promptly” shall be deemed to be on or prior to the next
succeeding Applicable Time.
(l) Upon
commencement of the offering of Shares under this Agreement, and at the time
Shares are delivered to the Agents as principal on a Settlement Date, and
promptly after each other Representation Date, the Company will cause
PricewaterhouseCoopers LLP, or other independent accountants reasonably
satisfactory to the Agents, to furnish to the Agents a letter, dated the date of
effectiveness of such amendment or the date of filing of such supplement or
other document with the Commission, as the case may be, in form reasonably
satisfactory to the Agents and their counsel, of the same tenor as the letter
referred to in Section 6(d) hereof, but modified as necessary to relate to
the Registration Statement, the Disclosure Package and the Prospectus, as
amended and supplemented, or to the document incorporated by reference into the
Prospectus, to the date of such letter. As used in this paragraph, to the extent
there shall be an Applicable Time on or following the applicable Representation
Date, “promptly” shall be deemed to be on or prior to the next succeeding
Applicable Time.
(m) The
Company consents to the Agents trading in the Company’s Common Stock for the
Agents’ own account and for the account of its clients at the same time as sales
of Shares occur pursuant to this Agreement or any Terms Agreement.
(n) If, to
the knowledge of the Company, all filings required by Rule 424 in
connection with this offering shall not have been made or the representations in
Section 1(a) shall not be true and correct on the applicable Settlement
Date, the Company will offer to any person who has agreed to purchase Shares
from the Company as the result of an offer to purchase solicited by the Agents
the right to refuse to purchase and pay for such Shares.
(o) The
Company will cooperate timely with any reasonable due diligence review conducted
by the Agents or its counsel from time to time in connection with the
transactions contemplated hereby or in any Terms Agreement, including, without
limitation, and upon reasonable notice providing information and making
available documents and appropriate corporate officers, during regular business
hours and at the Company’s principal offices, as the Agents may reasonably
request.
(p) The
Company will not, without: (i) giving the Agents at least five business
days’ prior written notice specifying the nature of the proposed sale and the
date of such proposed sale and (ii) the Agents suspending activity under
this program for such period of time as requested by the Company or as deemed
appropriate by the Agents in light of the proposed sale, (A) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, lend or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or securities convertible
into or exchangeable or exercisable for or repayable with Common Stock, or file
any registration statement under the 1933 Act with respect to any of the
foregoing (other than a shelf registration statement under Rule 415 under
the 1933 Act, a registration statement on Form S-8 or post-effective
amendment to the Registration Statement); or (B) enter into any swap or
other agreement or any transaction that transfers in whole or in part, directly
or indirectly, any of the economic consequence of ownership of the Common Stock,
or any securities convertible into or exchangeable or exercisable for or
repayable with Common Stock, whether any such swap or transaction described in
clause (A) or (B) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (v) the Shares to be offered and sold through the Agents pursuant
to this Agreement or any Terms Agreement, (w) Common Stock issuable
pursuant to the Company’s stock purchase and dividend reinvestment plan as it
may be amended or replaced from time to time, (x) stock issuable upon exchange
with holders of limited partnership interests in Home Properties, L.P.
outstanding on the date of this Agreement or disclosed in the Registration
Statement, (y) stock issuable in connection with the Company’s Senior
Notes, and (z) equity incentive awards approved by the board of directors
of the Company or the compensation committee thereof or the issuance of Common
Stock upon exercise thereof.
(q) If
immediately prior to the third anniversary (the “Renewal Deadline”) of
the initial effective date of the Registration Statement, any of the Shares
remain unsold, the Company will, prior to the Renewal Deadline file, if it has
not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Shares, in a form satisfactory to the
Agents. If the Company is no longer eligible to file an automatic
shelf registration statement, the Company will, prior to the Renewal Deadline,
if it has not already done so, file a new shelf registration statement relating
to the Shares, in a form satisfactory to the Agents, and will use its best
efforts to cause such registration statement to be declared effective within
60 days after the Renewal Deadline. The Company will take all
other action necessary or appropriate to permit the issuance 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 automatic shelf registration statement or such
new shelf registration statement, as the case may be.
(r) As
promptly as practicable after the close of each of the Company’s fiscal
quarters, to prepare a Prospectus Supplement, which will set forth the number of
Shares sold by the Company pursuant to this Agreement, the net proceeds to the
Company and the compensation paid by the Company to the Agents in a form
previously approved by the Agents with respect to such sales and to file such
Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and
within the time periods required by Rule 424(b) and Rules 430A, 430B
or 430C under the Securities Act); to provide copies of the Prospectus and such
Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent
not previously delivered or filed on the Commission’s Electronic Data Gathering,
Analysis and Retrieval system or any successor system thereto (collectively,
“XXXXX”)) to
Xxxxxxx Xxxxx via e-mail in “.pdf” format on such filing date to an e-mail
account designated by Xxxxxxx Xxxxx; and, at Xxxxxxx Xxxxx’x request, to furnish
copies of the Prospectus and such Prospectus Supplement to each exchange or
market on which sales were effected as may be required by the rules or
regulations of such exchange or market.
Section
4. Free Writing
Prospectus.
(a) (i) The Company
represents and agrees that without the prior consent of the Agents, it has not
made and will not make any offer relating to the Shares that would constitute a
“free writing prospectus” as defined in Rule 405 under the 1933 Act;
and
(ii) each
Agent represents and agrees that, without the prior consent of the Company it
has not made and will not make any offer relating to the Shares that would
constitute a free writing prospectus required to be filed with the
Commission.
(b) The
Company has complied and will comply with the requirements of Rule 433
under the 1933 Act applicable to any Issuer Free Writing Prospectus
(including any free writing prospectus identified in Section 4(a) hereof),
including timely filing with the Commission or retention where required and
legending.
Section
5. Payment of
Expenses.
(a) The
Company covenants and agrees with the Agents that the Company will pay or cause
to be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in connection with the
registration of the Shares under the 1933 Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Basic Prospectus, Prospectus Supplement, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Agents; (ii) the cost of
printing or producing this Agreement or any Terms Agreement, any Blue Sky and
Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Shares; (iii) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws as
provided in Section 3(b) hereof, including the reasonable fees and
disbursements of counsel for the Agents in connection with such qualification
and in connection with the Blue Sky and Legal Investment Surveys; (iv) any
filing fees incident to, and the reasonable fees and disbursements of counsel
for the Agents in connection with, any required review by Financial Industry
Regulatory Authority, Inc. of the terms of the sale of the Shares; (v) all
fees and expenses in connection with listing the Shares on the Exchange;
(vi) the cost of preparing the Shares in book entry form; (vii) the
costs and charges of any transfer agent or registrar or any dividend
distribution agent; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Section 7 hereof, the Agents will pay all of
its own costs and expenses, including the fees of its counsel, transfer taxes on
resale of any of the Shares by it, and any advertising expenses connected with
any offers it may make.
(b) If an
aggregate of 600,000 shares have not been offered and sold under this Agreement
by December 31, 2010 (or such earlier date on which the Company terminates this
Agreement), the Company shall reimburse the Agents for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of a
single counsel for the Agent incurred by it in connection with the offering
contemplated by this Agreement.
Section
6. Conditions of Agent’s
Obligation. The obligations of the Agents hereunder shall be
subject, in each of their sole discretion, to the condition that all
representations and warranties and other statements of the Company herein or in
certificates of any officer of the Company delivered pursuant to the provisions
hereof are true and correct as of the time of the execution of this Agreement,
the date of any executed Terms Agreement and as of each Representation Date,
Applicable Time and Settlement Date, to the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The
Prospectus Supplement shall have been filed with the Commission pursuant to
Rule 424(b) under the 1933 Act on or prior to the date hereof and in
accordance with Section 3(a) hereof, any other material required to be
filed by the Company pursuant to Rule 433(d) under the 1933 Act shall
have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission and no notice of objection of the Commission to the
use of the form of the Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been
received; no stop order suspending or preventing the use of the Prospectus or
any Issuer Free Writing Prospectus shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of the
Representatives.
(b) On every
date specified in Section 3(k) hereof (including, without limitation, on
every Request Date), Sidley Austin llp, counsel for the
Agents, shall have furnished to the Agents such written opinion or opinions,
dated as of such date, with respect to such matters as the Agents may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such
matters.
(c) On every
date specified in Section 3(k) hereof (including, without limitation, on
every Request Date), Xxxxx Xxxxxxx LLP, counsel for the Company, and General
Counsel to the Company shall have each furnished to the Agents written opinion
or opinions, dated as of such date, in form and substance satisfactory to the
Agents.
(d) At the
dates specified in Section 3(l) hereof (including, without limitation, on
every Request Date), the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus shall have furnished to the Agents a
letter dated as of the date of delivery thereof and addressed to the Agents in
form and substance reasonably satisfactory to the Agents and their counsel,
containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus.
(e) (i) Upon
commencement of the offering of Shares under this Agreement and on such other
dates as reasonably requested by either Agent, the Company will furnish or cause
to be furnished promptly to the Agents a certificate of an officer in a form
satisfactory to the Agents stating the minimum gross sales price per share for
the sale of such Shares pursuant to this Agreement and the maximum number of
Shares that may be issued and sold pursuant to this Agreement or, alternatively,
maximum gross proceeds from such sales, as authorized from time to time by the
Company’s board of directors or a duly authorized committee thereof, and the
number of Shares that have been approved for listing on the NYSE or, in
connection with any amendment, revision or modification of such minimum price or
maximum Share number or amount, a new certificate with respect thereto and
(ii) on each date specified in Section 3(j) (including, without
limitation, on every Request Date), the Agents shall have received a certificate
of executive officers of the Company, one of whom shall be the Chief Financial
Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the
area of capital markets and investments, dated as of the date thereof, to the
effect that (A) there has been no Material Adverse Effect since the date as
of which information is given in the Prospectus as then amended or supplemented,
(B) the representations and warranties in Section 1 hereof are true
and correct as of such date and (C) the Company has complied with all of
the agreements entered into in connection with the transaction contemplated
herein and satisfied all conditions on its part to be performed or
satisfied.
(f) Since the
date of the latest audited financial statements then included or incorporated by
reference in the Prospectus and the Disclosure Package, no Material Adverse
Effect shall have occurred.
(g) The
Company shall have complied with the provisions of Section 3(c) hereof with
respect to the timely furnishing of prospectuses.
(h) On such
dates as reasonably requested by the Agents, the Company shall have conducted
due diligence sessions, in form and substance satisfactory to the
Agents.
(i) All
filings with the Commission required by Rule 424 under the 1933 Act to
have been filed by each Applicable Time or related Settlement Date shall have
been made within the applicable time period prescribed for such filing by
Rule 424 (without reliance on Rule 424(b)(8)).
(j) The
Shares shall have received approval for listing on the NYSE prior to the first
Settlement Date.
(k) Counsel
for the Agents shall have been furnished with such documents and opinions as
they may reasonably request in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
contained herein or in any applicable Terms Agreement; and all proceedings taken
by the Company in connection with the issuance and sale of the Shares as
contemplated herein or in any applicable Terms Agreement and in connection with
the other transactions contemplated by this Agreement or any such Terms
Agreement shall be reasonably satisfactory in form and substance to the Agents
and counsel for the Agents.
Section
7. Indemnification.
(a) The
Company will indemnify and hold harmless each Agent against any losses, claims,
damages or liabilities, joint or several, to which either Agent may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus or any amendment or supplement thereto, any Issuer
Free Writing Prospectus, any Company roadshow materials used in connection with
the offer of Shares or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the 1933 Act, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Agents for any legal or other expenses
reasonably incurred by the Agents in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, the Basic Prospectus, the Prospectus Supplement or
the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any Company roadshow materials used in connection with the offer
of Shares, in reliance upon and in conformity with written information furnished
to the Company by the Agents expressly for use therein.
(b) The
Agents will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus, or any such amendment
or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon
and in conformity with written information furnished to the Company by the
Agents expressly for use therein, it being understood and agreed upon that the
only such information furnished by either Agent consists of the following
information in the Prospectus Supplement furnished on behalf of each Agent: (i)
the last sentence of the first paragraph under the caption “Plan of
Distribution” and (ii) the first sentence of the seventh paragraph under the
caption “Plan of Distribution”; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection except and then only to the extent such indemnifying party
is materially prejudiced thereby. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the
indemnification provided for in this Section 7 is unavailable to hold harmless
an indemnified party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Agents on the other from the offering of the Shares to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Agents on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agents on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total commissions received by the
Agents. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Agents on the other
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), neither Agent shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares sold by it to the public were offered to the public exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The
obligations of the Company under this Section 7 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to the directors and officers of each Agent and to each
person, if any, who controls such Agent within the meaning of the 1933 Act
and each broker dealer affiliate of each Agent; and the obligations of the
Agents under this Section 7 shall be in addition to any liability which the
Agents may otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the 1933 Act.
Section
8. Representations, Warranties
and Agreements to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and the Agents, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Agents or any controlling person of either
Agent, or the Company, or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for the Shares.
Section
9. No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that
(i) the Agents are acting solely in the capacity of an arm’s length
contractual counterparty to the Company with respect to the offering of Shares
contemplated hereby (including in connection with determining the terms of such
offering) and (ii) the Agents have not assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether the Agents have
advised or are currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement and (iii) the Company has consulted its own legal and financial
advisors to the extent it deemed appropriate. The Company agrees that it will
not claim that the Agents have rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with
such transaction or the process leading thereto.
Section
10. Termination.
(a) The
Company shall have the right, by giving written notice as hereinafter specified,
to terminate this Agreement in its sole discretion at any time. Any
such termination shall be without liability of any party to any other party,
except that (i) with respect to any pending sale through either Agent for
the Company or with respect to any pending sale to either Agent pursuant to a
Term Agreement or any offering or resale of any Shares purchased or to be
purchased by either Agent pursuant to a Terms Agreement, the obligations of the
Company, including in respect of compensation of such Agent, shall remain in
full force and effect notwithstanding such termination; and (ii) the
provisions of Section 1, Section 5(b), Section 7 and
Section 8 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(b) Each
Agent shall have the right, by giving written notice as hereinafter specified,
to terminate this Agreement in its sole discretion at any time. Any
such termination shall be without liability of any party to any other party
except that the provisions of Section 1, Section 5(b), Section 7
and Section 8 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect until and unless terminated
pursuant to Section 10(a) or (b) above or otherwise by mutual agreement of
the parties; provided that any
such termination by mutual agreement or pursuant to this clause (c) shall
in all cases be deemed to provide that Section 1, Section 5(b),
Section 7 and Section 8 of this Agreement shall remain in full force
and effect.
(d) Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided that such
termination shall not be effective until the close of business on the date of
receipt of such notice by the Agents or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for
any sale of Shares, such sale shall settle in accordance with the provisions of
Section 2(h) hereof.
(e) In the
case of any purchase by either Agent pursuant to a Terms Agreement, such Agent
may terminate this Agreement, at any time at or prior to the Settlement Date:
(i) if there has been, since the time of execution of the Agreement or
since the respective dates as of which information is given in the Prospectus or
General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the reasonable judgment of such Agent, impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of Shares,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission of the NYSE, or if trading generally on the
American Stock Exchange or the NYSE or Nasdaq has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the Financial Industry Regulatory Authority, Inc.
or any other governmental authority, or (iv) a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, or (v) if a banking moratorium has been declared by
either Federal of New York authorities.
Section
11. Notices. All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Agents shall be delivered or sent by mail, e-mail or facsimile
transmission to:
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
Attention:
Xxxxxxx Xxxx
E-Mail: xxxxxxx.x.xxxx@xxxx.xxx
BMO
Capital Markets Corp.
0 Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
Xxxxxx
Fax: 0-000-000-0000
E-Mail: xxxx.xxxxxx@xxx.xxx
and if to
the Company to:
Home
Properties, Inc.
000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Fax
No.: (000) 000-0000
Attention: Xxxxx
X. Xxxxxxx
E-Mail: xxxxxx@xxxxxxxxxxxxxx.xxx
Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
Section
12. Parties. This
Agreement shall be binding upon, and inure solely to the benefit of, the Agents
and the Company and, to the extent provided in Sections 7 and 8 hereof, the
officers and directors of the Company and the Agents and each person who
controls the Company or either Agent, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of
Shares through the Agents shall be deemed a successor or assign by reason merely
of such purchase.
Section
13. Time of the
Essence. Time shall be of the essence of this
Agreement. As used herein, the term “business day” shall mean any day
when the Commission’s office in Washington, D.C. is open for
business.
Section
14. Submission to Jurisdiction;
Waiver of Jury Trial. No proceeding related to this Agreement
or any Terms Agreement or any transactions contemplated hereby or thereby may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company waives all right to trial by jury in any
proceeding (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement or any Terms Agreement. The
Company agrees that a final judgment in any such proceeding brought in any such
court shall be conclusive and binding upon the Company and may be enforced in
any other courts to whose jurisdiction the Company is or may be subject, by suit
upon such judgment.
Section
15. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
PRINCIPLES OF CONFLICTS OF LAW.
Section
16. Counterparts. This
Agreement and any Terms Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument. This Agreement and any Terms
Agreement may be delivered by any party by facsimile or other electronic
transmission.
Section
17. Severability. The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement or any Terms Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof or thereof, as the case may
be. If any Section, paragraph or provision of this Agreement or any
Terms Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Agents and
the Company in accordance with its terms.
Very truly yours,
Home Properties, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title:
Chief Financial Officer and
Executive
Vice President
Accepted
as of the date hereof:
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: /s/ Xxxx Xxxxxxxxxx
Name:
Xxxx Xxxxxxxxxx
Title:
Managing Director
BMO
Capital Markets Corp.
By: /s/ Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Managing Director
NY1
7162382v.9
Schedule 1
Significant
Subsidiaries
Home
Properties I, LLC
Home
Properties Trust
Home
Properties, L.P.
Annex 1
Home
Properties, Inc.
Common
Stock
($0.01
par value)
TERMS
AGREEMENT
[ADDRESS
OF AGENT]
Ladies
and Gentlemen:
Home
Properties, Inc., a Maryland corporation (the “Company”), proposes,
subject to the terms and conditions stated herein and in the ATM Equity Offering
Sales Agreement, dated [●] (the “Sales Agreement”),
between the Company and [●] (the “Agent”), to issue and
sell to the Agent the securities specified in the Schedule hereto (the “Purchased
Securities”). Capitalized terms used herein and not defined
have the respective meanings ascribed thereto in the Sales
Agreement.
Each of
the provisions of the Sales Agreement not specifically related to the
solicitation by the Agent, as agent of the Company, of offers to purchase
securities is incorporated herein by reference in its entirety, and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Terms Agreement and the Applicable Time, except that each
representation and warranty in Section 1 of the Sales Agreement which makes
reference to the Prospectus (as therein defined) shall be deemed to be a
representation and warranty as of the date of the Sales Agreement in relation to
the Prospectus, and also a representation and warranty as of the date of this
Terms Agreement and the Settlement Date in relation to the Prospectus as amended
and supplemented to relate to the Purchased Securities.
An
amendment to the Registration Statement (as defined in the Sales Agreement), or
a supplement to the Prospectus, as the case may be, relating to the Purchased
Securities, in the form heretofore delivered to the Agent is now proposed to be
filed with the Securities and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the Sales Agreement which
are incorporated herein by reference, the Company agrees to issue and sell to
the Agent and the latter agrees to purchase from the Company the number of
shares of the Purchased Securities at the time and place and at the purchase
price set forth in the Schedule hereto.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Agents and
the Company in accordance with its terms.
THIS
TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Very
truly yours,
Home
Properties, Inc.
By:
Name:
Title:
Accepted
as of the date hereof:
[AGENT]
By:
Name:
Title:
