4,000,000 Shares CHATHAM LODGING TRUST Common Shares of Beneficial Interest UNDERWRITING AGREEMENT
Exhibit 1.1
4,000,000 Shares
Common Shares of Beneficial Interest
February 2, 2011
Barclays Capital Inc.
As Representative of the several
Underwriters named in Schedule 1 attached hereto,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
As Representative of the several
Underwriters named in Schedule 1 attached hereto,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Chatham Lodging Trust, a Maryland real estate investment trust (the “Company”), proposes to
sell 4,000,000 shares (the “Firm Shares”) of the Company’s common shares of beneficial interest,
par value $0.01 per share (the “Common Shares”), to the underwriters (the “Underwriters”) named in
Schedule 1 attached to this agreement (this “Agreement”). In addition, the Company
proposes to grant to the Underwriters an option to purchase up to 600,000 additional Common Shares
on the terms set forth in Section 2 (the “Option Shares”). The Firm Shares and the Option
Shares, if purchased, are hereinafter collectively called the “Shares.” This is to confirm the
agreement concerning the purchase of the Shares from the Company by the Underwriters.
1. Representations, Warranties and Agreements. Each of the Company and Chatham Lodging, L.P.,
a Delaware limited partnership (the “Operating Partnership”), represents, warrants and agrees that:
(a) A registration statement on Form S-11 relating to the Shares has (i) been prepared
by the Company in conformity with the requirements of the Securities Act of 1933, as amended
(the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder; (ii) been filed with the
Commission under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendment thereto have been delivered by the
Company to you as the representative (the “Representative”) of the Underwriters. As used in
this Agreement:
(i) “Applicable Time” means 4:35 p.m. (New York City time) February 2, 2011;
(ii) “Effective Date” means the date and time as of which such registration
statement was declared effective by the Commission;
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(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection with the offering of the
Shares;
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the
Shares included in such registration statement or filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with the information included in
Schedule 3 hereto and each Issuer Free Writing Prospectus filed or used by
the Company on or before the Applicable Time, other than a road show that is an
Issuer Free Writing Prospectus but is not required to be filed under Rule 433 of the
Rules and Regulations.
(vi) “Prospectus” means the final prospectus relating to the Shares, as filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “Registration Statement” means such registration statement, as amended as
of the Effective Date, including any Preliminary Prospectus or the Prospectus and
all exhibits to such registration statement.
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration Statement or filed pursuant to
Rule 424(b) prior to or on the date hereof. Any reference herein to the term “Registration
Statement” shall be deemed to include the abbreviated registration statement to register
additional Common Shares under Rule 462(b) of the Rules and Regulations in connection with
the offering of the Shares. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding or examination for such
purpose has been instituted or threatened by the Commission.
(b) The Company was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the
Shares, is not on the date hereof and will not be on the applicable Delivery Date an
“ineligible issuer” (as defined in Rule 405).
(c) The Registration Statement complied and will comply in all material respects on the
Effective Date and on the applicable Delivery Date, and any amendment to the Registration
Statement filed after the date hereof will comply in all material respects when filed, to
the requirements of the Securities Act and the Rules and Regulations. The most recent
Preliminary Prospectus complied, and the Prospectus will comply, in all material respects
when filed with the Commission pursuant to Rule 424(b)
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and on the applicable Delivery Date to the requirements of the Securities Act and the
Rules and Regulations.
(d) The Registration Statement did not, as of the Effective Date, 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; provided that no representation
or warranty is made as to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written information furnished to the
Company through the Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 8(e).
(e) The Prospectus will not, as of its date and on the applicable Delivery Date,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Prospectus in reliance
upon and in conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(f) The Pricing Disclosure Package did not, as of the Applicable Time, contain an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to information contained
in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the Representative by or on behalf of
any Underwriter specifically for inclusion therein, which information is specified in
Section 8(e).
(g) Each Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), when considered together with the Pricing
Disclosure Package as of the Applicable Time, 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; provided that no representation or warranty is made as to information
contained in or omitted from the Pricing Disclosure Package in reliance upon and in
conformity with written information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein, which information is
specified in Section 8(e).
(h) Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations on the date
of first use, and the Company has complied with all prospectus delivery and any filing
requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Company has not made any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus without the prior written consent of the
Representative. The Company has retained in accordance with the Rules and
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Regulations all Issuer Free Writing Prospectuses that were not required to be filed
pursuant to the Rules and Regulations. The Company has complied with the provisions of Rule
433(d)(8)(ii) of the Rules and Regulations, such that any “road show” (as defined in Rule
433 of the Rules and Regulations) in connection with the offering of the Shares will not be
required to be filed pursuant to the Rules and Regulations.
(i) Each of the Company and its subsidiaries (as defined in Section 17) has been duly
organized, is validly existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do
business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified or in good standing
could not, in the aggregate, reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations, shareholders’ equity, properties,
business or prospects of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”); each of the Company and its subsidiaries has all power and authority
necessary to own or hold its properties and to conduct the businesses in which it is
engaged. The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21 to the
Registration Statement.
(j) The Company has an authorized capitalization as set forth in each of the most
recent Preliminary Prospectus and the Prospectus, and all of the issued Common Shares of the
Company have been duly authorized and validly issued, are fully paid and non-assessable,
conform to the description thereof contained in the most recent Preliminary Prospectus and
were issued in compliance with federal and state securities laws and not in violation of any
preemptive right, resale right, right of first refusal or similar right. Except as
described in the most recent Preliminary Prospectus, no options, warrants or other rights to
purchase or exchange any securities for Common Shares of the Company or capital stock or
other equity interest of any of its subsidiaries are outstanding. Except as described in
the most recent Preliminary Prospectus, all of the issued shares of capital stock or other
equity interest of each subsidiary of the Company have been duly authorized and validly
issued, are fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims, except for such
liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(k) The Shares to be issued and sold by the Company to the Underwriters hereunder have
been duly authorized and, upon payment and delivery in accordance with this Agreement, will
be validly issued, fully paid and non-assessable, will conform to the description thereof
contained in the most recent Preliminary Prospectus, will be issued in compliance with
federal and state securities laws and will be free of statutory and contractual preemptive
rights, rights of first refusal and similar rights.
(l) The Company is the sole general partner of the Operating Partnership. Additionally,
the Company will contribute the net proceeds from the sale of the Shares to
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the Operating Partnership in exchange for a number of units of partnership interest in
the Operating Partnership (the “OP Units”) equal to the number of Shares.
(m) The OP Units have been duly authorized and, upon payment and delivery, will be
validly issued, fully paid and nonassessable, will conform to the description thereof
contained in the most recent Preliminary Prospectus, will be issued in compliance with
federal and state securities laws and will be free of statutory and contractual preemptive
rights, rights of first refusal and similar rights.
(n) With respect to the share awards, long-term incentive plan units (“LTIP Units”)
issued by the Operating Partnership and other equity-based awards (the “Equity Incentive
Awards”) granted pursuant to the Company’s equity incentive plan (the “Equity Incentive
Plan”), (i) each Equity Incentive Award intended to qualify as an “incentive stock option”
under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) so
qualifies, (ii) each grant of an Equity Incentive Award was duly authorized no later than
the date on which the grant of such Equity Incentive Award was by its terms to be effective
(the “Grant Date”) by all necessary corporate action, including, as applicable, approval by
the board of trustees of the Company (or a duly constituted and authorized committee
thereof) and any required shareholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) each such grant was made in accordance with the terms
of the Equity Incentive Plan, the Exchange Act (as defined below) and all other applicable
laws, including the rules of the New York Stock Exchange, and (iv) each such grant was
properly accounted for in accordance with generally accepted accounting principles (United
States) in the financial statements (including the related notes) of the Company and
disclosed in the Company’s filings with the Commission in accordance with the Securities
Act, the Exchange Act and the Rules and Regulations. The Company has not knowingly granted,
and there is no and has been no policy or practice of the Company of granting, Equity
Incentive Awards prior to, or otherwise coordinated the grant of Equity Incentive Awards
with, the release or other public announcement of material information regarding the Company
or its subsidiaries or their results of operations or prospects.
(o) Sufficient Common Shares have been reserved for issuance of Equity Incentive
Awards under the Company’s Equity Incentive Plan, including in connection with LTIP Units,
as described in the most recent Preliminary Prospectus.
(p) Except for the Common Shares reserved for issuance in connection with the Company’s
Equity Incentive Plan described in the most recent Preliminary Prospectus, no Common Shares
are reserved for any purpose.
(q) Each of the Company and the Operating Partnership has all requisite corporate power
and authority to execute, deliver and perform their respective obligations under this
Agreement. This Agreement has been duly and validly authorized, executed and delivered by
the Company and the Operating Partnership.
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(r) The agreement of limited partnership of the Operating Partnership (the “Operating
Partnership Agreement”), has been duly and validly authorized, executed and delivered by the
Company, in its capacity as sole general partner of the Operating Partnership, and
constitutes a valid and binding agreement of limited partnership, enforceable in accordance
with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights
generally, (ii) general equitable principles (whether considered in a proceeding in equity
or at law) and (iii) any implied covenant of good faith and fair dealing. The Operating
Partnership Agreement conforms in all material respects to the description thereof contained
in the most recent Preliminary Prospectus.
(s) The execution, delivery and performance of this Agreement by the Company and the
Operating Partnership, the consummation of the transactions contemplated hereby and the
application of the proceeds from the sale of the Shares as described under “Use of Proceeds”
in the most recent Preliminary Prospectus will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, impose any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, license or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; (ii) result in any violation of
the provisions of the declaration of trust or bylaws (or similar organizational documents)
of the Company or any of its subsidiaries; or (iii) result in any violation of any statute
or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties or
assets, except, in the case of clauses (i) and (iii), as would not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
(t) No consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for the execution, delivery
and performance of this Agreement by the Company and the Operating Partnership, the
consummation of the transactions contemplated hereby and the application of the proceeds
from the sale of the Shares as described under “Use of Proceeds” in the most recent
Preliminary Prospectus, except for the registration of the Shares under the Securities Act,
such consents, approvals, authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and applicable
state securities laws in connection with the purchase and sale of the Shares by the
Underwriters and as would not reasonably be expected to have a Material Adverse Effect.
(u) There are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
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such securities in the securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(v) Neither the Company nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included in the most recent Preliminary Prospectus,
any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, and since such date, there has not been any change in the capital
stock or long-term debt of the Company, any of its subsidiaries or any adverse change, or
any development involving a prospective adverse change, in or affecting the condition
(financial or otherwise), results of operations, shareholders’ equity, properties,
management, business or prospects of the Company and its subsidiaries taken as a whole,
except as could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(w) Since the date as of which information is given in the most recent Preliminary
Prospectus, the Company has not (i) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were incurred in the ordinary course
of business, (ii) entered into any material transaction not in the ordinary course of
business or (iii) declared or paid any dividend on its capital stock.
(x) The historical financial statements (including the related notes and supporting
schedules) included in the most recent Preliminary Prospectus comply as to form in all
material respects with the requirements of Regulation S-X under the Securities Act and
present fairly the financial condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods indicated and have been
prepared in conformity with accounting principles generally accepted in the United States
applied on a consistent basis throughout the periods involved.
(y) The pro forma financial statements included in the most recent Preliminary
Prospectus include assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and events described therein,
the related pro forma adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments to the historical
financial statement amounts in the pro forma financial statements included in the most
recent Preliminary Prospectus. The pro forma financial statements included in the most
recent Preliminary Prospectus comply as to form in all material respects with the applicable
requirements of Regulation S-X under the Act.
(z) PricewaterhouseCoopers LLP, who has audited certain financial statements of the
Company and its consolidated subsidiaries, whose report appears in the most recent
Preliminary Prospectus and who has delivered the initial letter referred to in Section 7(h)
hereof, are independent public accountants as required by the Securities Act and the Rules
and Regulations.
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(aa) The Company and each of its subsidiaries have good and marketable title in fee
simple to all real property described in the most recent Preliminary Prospectus as owned by
them (the “Company Properties”) and good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and defects, except such as
are described in the most recent Preliminary Prospectus or such as do not materially affect
the value of such property and do not materially interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries; and all assets held under
lease by the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as do not materially interfere with the use made
and proposed to be made of such assets by the Company and its subsidiaries.
(bb) The Company or its subsidiaries have an owner’s title insurance policy, from a
nationally recognized title insurance company licensed to issue such policy, on each Company
Property that insures the fee interest in the Company Property, which policies include only
commercially reasonable exceptions, and with coverage in amounts at least equal to amounts
that are generally deemed in the Company’s industry to be commercially reasonable in the
markets where each Company Property is located.
(cc) Each of the Company Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes, laws and regulations
and laws relating to access to each of the Company Properties), except for such failures to
comply that would not, in the aggregate, have a Material Adverse Effect; there does not
exist any violation of any declaration of covenants, conditions and restrictions with
respect to the Company Properties that would, singly or in the aggregate, have a Material
Adverse Effect, and the Company has no knowledge of any state of facts or circumstances or
condition or event that would, with the giving of notice or passage of time, or both,
reasonably be expected to constitute such a violation; and the Company has no
knowledge of any pending or threatened condemnation proceeding, zoning change or other
proceeding or action that would reasonably be expected to have a Material Adverse Effect.
(dd) The Company and each of its subsidiaries carry, or are covered by, insurance from
insurers of recognized financial responsibility in such amounts and covering such risks as
the Company believes is adequate for the conduct of their respective businesses and the
value of their respective properties and customary for companies engaged in similar
businesses in similar industries. All policies of insurance of the Company and its
subsidiaries are in full force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies in all material respects; and neither the Company
nor any of its subsidiaries has received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance; there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause; and neither the Company
nor any such subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
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obtain similar coverage from similar insurers as may be necessary to continue its
business at a cost that could not reasonably be expected to have a Material Adverse Effect.
(ee) The statistical and market-related data included under the captions “Prospectus
Summary,” “Management Discussion and Analysis of Financial Condition and Results of
Operations,” and “Business” in the most recent Preliminary Prospectus and the consolidated
financial statements of the Company and its subsidiaries included in the most recent
Preliminary Prospectus are based on or derived from sources that the Company believes to be
reliable and accurate in all material respects.
(ff) Neither the Company nor any subsidiary is, and as of the applicable Delivery Date
and, after giving effect to the offer and sale of the Shares and the application of the
proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary
Prospectus and the Prospectus, none of them will be, required to be registered as an
“investment company” within the meaning of such term under the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder.
(gg) There are no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or assets of the Company or any of
its subsidiaries is the subject that would, in the aggregate, reasonably be expected to have
a Material Adverse Effect or would, in the aggregate, reasonably be expected to have a
material adverse effect on the performance of this Agreement or the consummation of the
transactions contemplated hereby; and to the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or others.
(hh) There are no legal or governmental proceedings or contracts or other documents of
a character required to be described in the Registration Statement or the most recent
Preliminary Prospectus or, in the case of documents, to be filed as exhibits to the
Registration Statement, that are not so described and filed as required. Neither the
Company nor any of its subsidiaries has knowledge that any other party to such contract,
agreement or arrangement has any intention not to render full performance as contemplated by
the terms thereof; and that statements made in the most recent Preliminary Prospectus
insofar as they purport to constitute summaries of the terms of statutes, rules or
regulations, legal or governmental proceedings or contracts and other documents, constitute
accurate summaries of the terms of such statutes, rules and regulations, legal and
governmental proceedings and contracts and other documents in all material respects.
(ii) Except as described in the most recent Preliminary Prospectus, no relationship,
direct or indirect, exists between or among the Company or any of its subsidiaries, on the
one hand, and the trustees, officers, shareholders, customers or suppliers of the Company or
any of its subsidiaries, on the other hand, that is required to be described by the
Securities Act or the Rules and Regulations in the most recent Preliminary Prospectus which
is not so described.
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(jj) No labor dispute by the employees of the Company or any of its subsidiaries exists
or, to the knowledge of the Company, is imminent.
(kk) (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the
Employee Retirement Security Act of 1974, as amended (“ERISA”)) that is subject to Title I
of ERISA and for which the Company or any member of its “Controlled Group” (defined as any
trade or business, whether or not incorporated, which is required to be treated as a single
employer with the Company under Section 414 of the Internal Revenue Code of 1986, as amended
(the “Code”)) would have any liability (each a “Plan”) has been maintained in compliance
with its terms and with the requirements of all applicable statutes, rules and regulations
including ERISA and the Code; (ii) for each Plan that is subject to the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA, the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA, as applicable, has been satisfied (without
taking into account any waiver thereof or extension of any amortization period) and is
reasonably expected to be satisfied in the future (without taking into account any waiver
thereof or extension of any amortization period); (iii) with respect to each Plan subject to
Title IV of ERISA (a) no “reportable event” (within the meaning of Section 4043(c) of ERISA)
has occurred or is reasonably expected to occur, (b) the fair market value of the assets
under each Plan exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan), (c) neither the Company nor
any member of its Controlled Group has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the Plan or premiums to the
PBGC in the ordinary course and without default) in respect of such Plan (including a
“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA) and (d) no
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such Plan, excluding transactions effected pursuant
to a statutory or administrative exemption; (iv) each Plan that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification; and (v) there is no
pending audit or investigation by the Internal Revenue Service, the U.S. Department of
Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any
foreign regulatory agency with respect to any Plan that could reasonably be expected to
result in material liability to the Company or its subsidiaries.
(ll) The Company and each of its subsidiaries have filed all federal tax returns and
all material state, local and foreign income and franchise tax returns required to be filed
through the date hereof, subject to permitted extensions, and have paid all taxes due
thereon, and no tax deficiency has been determined adversely to the Company or any of its
subsidiaries, nor does the Company have any knowledge of any tax deficiencies that could, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(mm) Neither the Company nor any of its subsidiaries (i) is in violation of its
declaration of trust or bylaws (or similar organizational documents), (ii) is in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, license or other
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agreement or instrument to which it is a party or by which it is bound or to which any
of its properties or assets is subject or (iii) is in violation of any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction over it
or its property or assets or has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business, except in the case of clauses (ii) and (iii), to
the extent any such conflict, breach, violation or default could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(nn) The Company and each of its subsidiaries (i) make and keep accurate books and
records and (ii), to the extent required by the Exchange Act and applicable accounting
principles, will maintain effective internal control over financial reporting as defined in
Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are executed in accordance with
management’s general or specific authorization, (B) transactions are recorded as necessary
to permit preparation of the Company’s financial statements in conformity with accounting
principles generally accepted in the United States and to maintain accountability for its
assets, (C) access to the Company’s assets is permitted only in accordance with management’s
general or specific authorization and (D) the recorded accountability for the Company’s
assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(oo) (i) The Company and each of its subsidiaries have established and maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the
information required to be disclosed by the Company and its subsidiaries in the reports they
will file or submit under the Exchange Act is accumulated and communicated to management of
the Company and its subsidiaries, including their respective principal executive officers
and principal financial officers, as appropriate, to allow timely decisions regarding
required disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
(pp) There has been and is no failure on the part of the Company and any of the
Company’s trustees or officers, in their capacities as such, to comply with the provisions
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith.
(qq) The Company and each of its subsidiaries have such permits, licenses, patents,
franchises, certificates of need and other approvals or authorizations of governmental or
regulatory authorities (“Permits”) as are necessary under applicable law to own their
properties and conduct their businesses in the manner described in the most recent
Preliminary Prospectus, except for any of the foregoing that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect; each of the Company and its
subsidiaries has fulfilled and performed all of its obligations with respect to the Permits,
and no event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of
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the rights of the holder or any such Permits, except for any of the foregoing that
would not reasonably be expected to have a Material Adverse Effect.
(rr) The Company and each of its subsidiaries (i) are, and at all times prior hereto
were, in compliance with all laws, statutes, regulations, ordinances, common law, rules,
orders, judgments, decrees, policies, permits or other legal requirements of any
governmental authority, including without limitation any international, national, state,
provincial, regional, or local authority, relating to the protection of human health or
safety, the environment, or natural resources, or to hazardous or toxic substances or
wastes, pollutants or contaminants (“Environmental Laws”) applicable to such entity, which
compliance includes, without limitation, obtaining, maintaining and complying with all
permits and authorizations and approvals required by Environmental Laws to conduct their
respective businesses, and (ii) have not received notice of any actual or alleged violation
of or responsibility under Environmental Laws, or of any potential liability for or other
obligation concerning the presence, disposal or release any Hazardous Material (as
hereinafter defined). Except as described in the most recent Preliminary Prospectus, (A)
there are no proceedings that are pending, or known to be contemplated, against the Company
or any of its subsidiaries under Environmental Laws in which a governmental authority is
also a party, (B) the Company and its subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a material effect on the capital expenditures, earnings
or competitive position of the Company and its subsidiaries, taken as a whole, and (C) none
of the Company and its subsidiaries anticipates material capital expenditures relating to
Environmental Laws. As used herein, “Hazardous Material” means any pollutant, chemical,
substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or
flammable chemical, or chemical compound, or hazardous substance, material or waste, whether
solid, liquid or gas, that is subject to regulation, control or remediation under any
Environmental Laws, including without limitation, any quantity of asbestos in any form, urea
formaldehyde, toxic mold, PCBs, radon gas, crude oil or any fraction thereof, all forms of
natural gas, petroleum products or by-products or derivatives.
(ss) The Company has obtained standard Phase I Environmental Audits with respect to
each of the Company Properties and, except as described in the most recent Preliminary
Prospectus: (i) the Company has not received any notice of, and has no knowledge of, any
occurrence or circumstance which, with notice or passage of time or both, could give rise to
a claim or liability under or pursuant to any Environmental Law, which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect; and (ii) none
of the Company Properties is included and, to the knowledge of the Company, none is proposed
for inclusion on the National Priorities List issued pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 by the United States
Environmental Protection Agency or, to the knowledge of the Company, proposed for inclusion
on any similar list or inventory.
(tt) Neither the Company nor any subsidiary is in violation of or has received notice
of any violation with respect to any federal or state law relating to discrimination
13
in the hiring, promotion or pay of employees, nor any applicable federal or state wage
and hour laws, nor any state law precluding the denial of credit due to the neighborhood in
which a property is situated, the violation of any of which could reasonably be expected to
have a Material Adverse Effect.
(uu) Commencing with its taxable year ending December 31, 2010, the Company has been
organized and has operated in conformity with the requirements for qualification and
taxation as a real estate investment trust (a “REIT”) under the Code, and the Company’s
proposed method of operation will enable it to meet the requirements for qualification and
taxation as a REIT under the Code. All statements regarding the Company’s qualification and
taxation as a REIT and descriptions of the Company’s organization and proposed method of
operation set forth in the most recent Preliminary Prospectus are true, complete and correct
in all material respects.
(vv) The Operating Partnership is and has been at all times classified as a
partnership, and not as an association or partnership taxable as a corporation, for federal
income tax purposes.
(ww) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as described in the most recent Preliminary
Prospectus.
(xx) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the
Company, any trustee, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(yy) The Company and its subsidiaries are and have been conducted at all times in
compliance with applicable provisions 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”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened, except, in each case, as would not reasonably be expected to have a Material
Adverse Effect.
14
(zz) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any trustee, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(aaa) The Company has not taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(bbb) The Shares will be approved for listing, subject to official notice of issuance
and evidence of satisfactory distribution, on the New York Stock Exchange.
Any certificate signed by any officer of the Company or the general partner of the Operating
Partnership and delivered to the Representative or counsel for the Underwriters in connection with
the offering of the Shares shall be deemed a representation and warranty by the Company or the
Operating Partnership, as the case may be, as to matters covered thereby, to each Underwriter.
2. Purchase of the Shares by the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this Agreement, the Company
agrees to sell 4,000,000 Firm Shares to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm Shares set forth opposite that
Underwriter’s name in Schedule 1 hereto. The respective purchase obligations of the
Underwriters with respect to the Firm Shares shall be rounded among the Underwriters to avoid
fractional shares, as the Representative may determine.
In addition, the Company grants to the Underwriters an option to purchase up to 600,000
additional Option Shares. Such option is exercisable in the event that the Underwriters sell more
Common Shares than the number of Firm Shares in the offering and as set forth in Section 4 hereof.
Each Underwriter agrees, severally and not jointly, to purchase the number of Option Shares
(subject to such adjustments to eliminate fractional shares as the Representative may determine)
that bears the same proportion to the total number of Option Shares to be sold on such Delivery
Date as the number of Firm Shares set forth in Schedule 1 hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The price of both the Firm Shares and any Option Shares purchased by the Underwriters shall be
$15.28 per share.
The Company shall not be obligated to deliver any of the Firm Shares or Option Shares to be
delivered on the applicable Delivery Date, except upon payment for all such Shares to be purchased
on such Delivery Date as provided herein.
15
3. Offering of Shares by the Underwriters. Upon authorization by the
Representative of the release of the Firm Shares, the several Underwriters propose to offer the
Firm Shares for sale upon the terms and conditions to be set forth in the Prospectus.
4. Delivery of and Payment for the Shares. Delivery of and payment for the Firm
Shares shall be made at 10:00 a.m., New York City time, on the fourth full business day following
the date of this Agreement or at such other date or place as shall be determined by agreement
between the Representative and the Company. This date and time are sometimes referred to as the
“Initial Delivery Date.” Delivery of the Firm Shares shall be made to the Representative for the
account of each Underwriter against payment by the several Underwriters through the Representative
and of the respective aggregate purchase prices of the Firm Shares being sold by the Company to or
upon the order of the Company of the purchase price by wire transfer in immediately available funds
to the accounts specified by the Company. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. The Company shall deliver the Firm Shares through the facilities of the
Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct.
The option granted in Section 2 will expire 30 days after the date of this Agreement and may
be exercised in whole or from time to time in part by written notice being given to the Company by
the Representative; provided that if such date falls on a day that is not a business day, the
option granted in Section 2 will expire on the next succeeding business day. Such notice shall set
forth the aggregate number of Option Shares as to which the option is being exercised, the names in
which the Option Shares are to be registered, the denominations in which the Option Shares are to
be issued and the date and time, as determined by the Representative, when the Option Shares are to
be delivered; provided, however, that this date and time shall not be earlier than the Initial
Delivery Date nor earlier than the second business day after the date on which the option shall
have been exercised nor later than the fifth business day after the date on which the option shall
have been exercised. Each date and time the Option Shares are delivered is sometimes referred to
as an “Option Shares Delivery Date,” and the Initial Delivery Date and any Option Shares Delivery
Date are sometimes each referred to as a “Delivery Date.”
Delivery of the Option Shares by the Company and payment for the Option Shares by the several
Underwriters through the Representative shall be made at 10:00 a.m., New York City time, on the
date specified in the corresponding notice described in the preceding paragraph or at such other
date or place as shall be determined by agreement between the Representative and the Company. On
the Option Shares Delivery Date, the Company shall deliver or cause to be delivered the Option
Shares to the Representative for the account of each Underwriter against payment by the several
Underwriters through the Representative and of the respective aggregate purchase prices of the
Option Shares being sold by the Company to or upon the order of the Company of the purchase price
by wire transfer in immediately available funds to the accounts specified by the Company. Time
shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is
a further condition of the obligation of each Underwriter hereunder. The Company shall deliver the
Option Shares through the facilities of DTC unless the Representative shall otherwise instruct.
16
5. Further Agreements of the Company and the Underwriters. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representative and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act in the manner and within the
time period required by Rule 424(b) (without reliance on Rule 424(b)(8)); to make no further
amendment or any supplement to the Registration Statement or the Prospectus prior to the
last Delivery Date except as provided herein; to advise the Representative, promptly after
it receives notice thereof, of the time when any amendment or supplement to the Registration
Statement or the Prospectus has been filed and to furnish the Representative with copies
thereof; to advise the Representative, 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 any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding or examination for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(ii) Upon request by the Representative, to furnish promptly to the Representative and
to counsel for the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith;
(iii) To deliver promptly to the Representative such number of the following documents
as the Representative shall reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of per share earnings), (B)
each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and
(C) each Issuer Free Writing Prospectus; and, if the delivery of a prospectus is required at
any time after the date hereof in connection with the offering or sale of the Shares or any
other securities relating thereto and if at such time any events 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 to amend or supplement the Prospectus in order to comply with the Securities Act,
to notify the Representative and, upon their request, to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
copies as the Representative may from time to time reasonably request of an amended or
supplemented Prospectus that will correct such statement or omission or effect such
compliance;
17
(iv) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the Company or the
Representative, be required by the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, to furnish a copy thereof to the Representative and counsel for
the Underwriters and obtain the consent of the Representative to the filing;
(vi) Not to make any offer relating to the Shares that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the Representative.
(vii) To comply with all applicable requirements of Rule 433 with respect to any Issuer
Free Writing Prospectus; and if at any time after the date hereof any events shall have
occurred as a result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement, the most
recent Preliminary Prospectus or the Prospectus or 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, not misleading, or,
if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing
Prospectus, to notify the Representative and, upon its request, to file such document and to
prepare and furnish without charge to each Underwriter as many copies as the Representative
may from time to time reasonably request of an amended or supplemented Issuer Free Writing
Prospectus that will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective Date (it being understood that the
Company shall have until at least 410 days or, if the fourth quarter following the fiscal
quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal
year, 455 days after the end of the Company’s current fiscal quarter), to make generally
available to the Company’s security holders and to deliver to the Representative an earnings
statement of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158);
(ix) Promptly from time to time to take such action as the Representative may
reasonably request to qualify the Shares for offering and sale under the securities laws of
Canada and such other jurisdictions as the Representative 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 distribution of the Shares;
provided that in connection therewith the Company shall not be required to (i) qualify as a
foreign corporation in any jurisdiction in which it would not otherwise be required to so
qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(x) For a period commencing on the date hereof and ending on the 90th day after the
date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1)
18
offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any Common Shares or securities convertible into or
exchangeable for Common Shares (other than the Shares and shares issued pursuant to the
Company’s Equity Incentive Plan existing on the date hereof), or sell or grant options,
rights or warrants with respect to any Common Shares or securities convertible into or
exchangeable for Common Shares (other than pursuant to the Company’s Equity Incentive Plan
existing on the date hereof), (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks of
ownership of such Common Shares, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Shares or other securities, in cash or
otherwise, (3) file or cause to be filed a registration statement, including any amendments,
with respect to the registration of any Common Shares or securities convertible, exercisable
or exchangeable into Common Shares or any other securities of the Company (other than any
registration statement on Form S-8) or (4) publicly disclose the intention to do any of the
foregoing, in each case without the prior written consent of Barclays Capital Inc. and UBS
Securities LLC on behalf of the Underwriters, and to cause each officer, trustee and
shareholder of the Company set forth on Schedule 2 hereto to furnish to the
Representative, prior to the Initial Delivery Date, a letter or letters, substantially in
the form of Exhibit A hereto (the “Lock-Up Agreements”); notwithstanding the
foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company occurs or (2)
prior to the expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the Lock-Up Period,
then the restrictions imposed in this paragraph shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the announcement
of the material news or the occurrence of the material event, unless Barclays Capital Inc.
and UBS Securities LLC, on behalf of the Underwriters, waives such extension in writing;
(xi) To apply the net proceeds from the sale of the Shares being sold by the Company as
set forth in the Prospectus; and
(xii) To use its best efforts to meet the requirements for qualification and taxation
as a REIT under the Code for its taxable year ending December 31, 2010, and the Company will
use its best efforts to continue to qualify for taxation as a REIT under the Code unless the
Company’s board of trustees determines in good faith that it is not in the best interests of
the Company and its shareholders to be so qualified.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer
information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405)
used or referred to by such Underwriter without the prior consent of the Company (any such issuer
information with respect to whose use the Company has given its consent, “Permitted Issuer
Information”); provided that (i) no such consent shall be required with respect to any such issuer
information contained in any document filed by the Company with the Commission prior to the use of
such free writing prospectus and (ii) “issuer information,” as used
19
in this Section 5(b), shall not be deemed to include information prepared by or on behalf of
such Underwriter on the basis of or derived from issuer information.
6. Expenses. The Company and the Operating Partnership, jointly and severally, agree,
whether or not the transactions contemplated by this Agreement are consummated or this Agreement is
terminated, to pay all costs, expenses, fees and taxes incident to and in connection with (a) the
authorization, issuance, sale and delivery of the Shares and any stamp duties or other taxes
payable in that connection, and the preparation and printing of certificates for the Shares; (b)
the preparation, printing and filing under the Securities Act of the Registration Statement
(including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus and any amendment or supplement thereto; (c) the distribution of the
Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, all as
provided in this Agreement; (d) the production and distribution of this Agreement, any supplemental
agreement among Underwriters, and any other related documents in connection with the offering,
purchase, sale and delivery of the Shares; (e) any required review by the Financial Industry
Regulatory Authority (the “FINRA”) of the terms of sale of the Shares (including reasonable fees
and expenses of counsel to the Underwriters incurred in connection with such review); (f) the
listing of the Shares on the New York Stock Exchange and/or any other exchange; (g) the
qualification of the Shares under the securities laws of the several jurisdictions as provided in
Section 5(a)(ix) and the preparation, printing and distribution of a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters); (h) the preparation, printing and
distribution of one or more versions of the Preliminary Prospectus and the Prospectus for
distribution in Canada, often in the form of a Canadian “wrapper” (including related fees and
expenses of Canadian counsel to the Underwriters); (i) the investor presentations on any “road
show” undertaken in connection with the marketing of the Shares, including, without limitation,
expenses associated with any electronic roadshow, travel and lodging expenses of the
representatives and officers of the Company and the cost of any aircraft chartered by the Company
in connection with the road show; and (j) all other costs and expenses incident to the performance
of the obligations of the Company under this Agreement; provided that, except as provided in this
Section 6 and in Section 11, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the Shares which they may sell and the
expenses of advertising any offering of the Shares made by the Underwriters.
7. Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Company and the Operating Partnership contained herein, to the performance by
the Company of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 5(a)(i); the Company shall have complied with all filing requirements applicable to
any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order
suspending the effectiveness of the Registration Statement or preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no
proceeding or examination for such purpose
20
shall have been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Shares, the Registration Statement, the Prospectus
and any Issuer Free Writing Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably request to enable them
to pass upon such matters.
(c) Hunton & Xxxxxxxx LLP shall have furnished to the Representative its written
opinion and letter, as counsel to the Company, addressed to the Underwriters and dated such
Delivery Date, substantially in the forms attached hereto as Exhibits B-1 and B-2.
(d) Hunton & Xxxxxxxx LLP shall have furnished to the Representative its written tax
opinion, as tax counsel to the Company, addressed to the Underwriters and dated such
Delivery Date, substantially in the form attached hereto as Exhibit B-3.
(e) Xxxxxxx LLP shall have furnished to the Representative its written opinion, as
Maryland counsel to the Company, addressed to the Underwriters and dated such Delivery Date,
substantially in the form attached hereto as Exhibit B-4.
(f) The Representative shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated such Delivery Date, in form and substance
satisfactory to the Representative, with respect to the issuance and sale of the Shares, the
Registration Statement, the Prospectus and the Pricing Disclosure Package and other related
matters as the Representative may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(g) At the time of execution of this Agreement, the Representative shall have received
from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the
Representative, addressed to the Underwriters and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the most recent Preliminary Prospectus,
as of a date not more than three days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
21
(h) With respect to the letter of PricewaterhouseCoopers LLP referred to in the
preceding paragraph and delivered to the Representative concurrently with the execution of
this Agreement (the “initial letter”), the Company shall have furnished to the
Representative a letter (the “bring-down letter”) of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a date not more than
three days prior to the date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the conclusions and findings set forth
in the initial letter.
(i) The Representative shall have received from the Company, on behalf of itself and
the Operating Partnership (in the Company’s capacity as general partner of the Operating
Partnership), a certificate, dated such Delivery Date, of the Chief Executive Officer and
Chief Financial Officer of the Company stating that:
(i) The representations, warranties and agreements of the Company and the
Operating Partnership in Section 1 are true and correct on and as of such Delivery
Date, and the Company and the Operating Partnership have complied with all the
agreements contained herein and satisfied all the conditions on their part to be
performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; and no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration Statement, the Prospectus
and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the
applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material fact
and did not and do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (except in the case of the Registration
Statement, in the light of the circumstances under which they were made) not
misleading, and (B) since the Effective Date, no event has occurred that should have
been set forth in a supplement or amendment to the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(j) (i) neither the Company nor any of its subsidiaries shall have sustained, since the
date of the latest audited financial statements included in the most recent Preliminary
Prospectus, any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
22
or court or governmental action, order or decree or (ii) since such date there shall
not have been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change in or affecting the condition (financial or otherwise), results
of operations, properties, management, business or prospects of the Company and its
subsidiaries taken as a whole, the effect of which, in any such case described in clause (i)
or (ii), is, in the judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Shares being delivered on such Delivery Date on the terms and in the manner contemplated in
the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in general economic,
political or financial conditions, including, without limitation, as a result of terrorist
activities after the date hereof (or the effect of international conditions on the financial
markets in the United States shall be such), as to make it, in case of each of clauses (i)
through (iv), in the judgment of the Representative, impracticable or inadvisable to proceed
with the public offering or delivery of the Shares being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(l) The New York Stock Exchange shall have approved the Shares for listing, subject
only to official notice of issuance and evidence of satisfactory distribution.
(m) Lock-Up Agreements, substantially in the form of Exhibit A hereto, between
the Representative and the persons set forth on Schedule 2, shall have been
delivered to the Representative on or before the date of this Agreement, shall be in full
force and effect on such Delivery Date.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Operating Partnership, jointly and severally, shall indemnify
and hold harmless each Underwriter, its directors, officers and employees and each person,
if any, who is controlled by or controls any Underwriter within the meaning
23
of Section 15 of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales of Shares),
to which that Underwriter, director, officer, employee, controlled person or controlling
person may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus,
the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B)
any Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any
Permitted Issuer Information used or referred to in any “free writing prospectus” (as
defined in Rule 405) used or referred to by any Underwriter, (D) any “road show” (as defined
in Rule 433) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road
Show”) or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Permitted Issuer Information or any Non-Prospectus
Road Show, any material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter and each such
director, officer, employee, controlled person or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter, director, officer,
employee, controlled person or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability or action
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, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement
thereto or in any Permitted Issuer Information or any Non-Prospectus Road Show, in reliance
upon and in conformity with written information concerning such Underwriter furnished to the
Company through the Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information consists solely of the information specified in Section
8(e). The foregoing indemnity agreement is in addition to any liability which the Company
or the Operating Partnership may otherwise have to any Underwriter or to any director,
officer, employee, controlled person or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, the Operating Partnership, their respective trustees (including any person who,
with his or her consent, is named in the Registration Statement as about to become a trustee
of the Company), officers and employees, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to which the
Company, the Operating Partnership or any such trustee, trustee nominee, officer, employee
or controlling person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any amendment or supplement thereto or in any
00
Xxx-Xxxxxxxxxx Xxxx Show, or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show, any
material fact required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through the
Representative by or on behalf of that Underwriter specifically for inclusion therein, which
information is limited to the information set forth in Section 8(e). The foregoing
indemnity agreement is in addition to any liability that any Underwriter may otherwise have
to the Company, the Operating Partnership or any such trustee, trustee nominee, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the right to employ
counsel to represent jointly the indemnified party and those other indemnified parties and
their respective directors, trustees, trustee nominees, officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of which
indemnity may be sought under this Section 8 if (i) the indemnified party and the
indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to the indemnified party;
(iii) the indemnified party and its directors, trustees, trustee nominees, officers,
employees and controlling persons shall have reasonably concluded that there may be legal
defenses available to them that are different from or in addition to those available to the
indemnifying party; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the indemnified parties or their respective directors,
trustees, trustee nominees, officers, employees or controlling persons, on the one hand, and
the indemnifying party, on the other hand, and representation of both sets of parties by the
same counsel would be inappropriate due to actual or potential differing interests between
them, and in any such event the fees and expenses of such separate counsel shall be paid by
the indemnifying party. In no event shall the
25
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No indemnifying
party shall (i) without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding and does not
include any findings of fact or admissions of fault or culpability as to the indemnified
party, or (ii) be liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or
8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by the Company
and the Operating Partnership, on the one hand, and the Underwriters, on the other, from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Company
and the Operating Partnership, on the one hand, and the Underwriters, on the other, with
respect to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership, on the one hand, and the Underwriters, on the other, with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting expenses) received
by the Company and the Operating Partnership, as set forth in the table on the cover page of
the Prospectus, on the one hand, and the total underwriting discounts and commissions and
Conditional Payment received by the Underwriters with respect to the Shares purchased under
this Agreement, as set forth in the table on the cover page of the Prospectus, on the other
hand. The relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company, the Operating Partnership or the
Underwriters, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company, the
Operating Partnership and the Underwriters agree that it
26
would not be just and equitable if contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), 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 Section 8(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the net proceeds from the sale of the Shares underwritten
by it exceeds the amount of any damages that such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute as
provided in this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Company and the Operating Partnership
acknowledge and agree that the statements regarding delivery of shares by the Underwriters
set forth on the cover page of, and the concession and reallowance figures appearing in the
first sentence of the fourth paragraph and the statements in the second sentence of the
ninth paragraph, the eleventh paragraph, the fourth sentence of the fourteenth paragraph and
the second sentence of the sixteenth paragraph appearing under the caption “Underwriting”
in, the most recent Preliminary Prospectus and the Prospectus are correct and constitute the
only information concerning such Underwriters furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Non-Prospectus Road Show.
9. Defaulting Underwriters. If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Shares that the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of Firm Shares set
forth opposite the name of each remaining non-defaulting Underwriter in Schedule 1 hereto
bears to the total number of Firm Shares set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Shares on such Delivery
Date if the total number of Shares that the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 9.09% of the total number of Shares to be purchased on such
Delivery Date, and any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of Shares that it agreed to purchase on such Delivery Date pursuant to the
terms of Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as may
27
be agreed upon among them, all the Shares to be purchased on such Delivery Date. If the
remaining Underwriters or other underwriters satisfactory to the Representative do not elect to
purchase the shares that the defaulting Underwriter or Underwriters agreed but failed to purchase
on such Delivery Date, this Agreement (or, with respect to any Option Shares Delivery Date, the
obligation of the Underwriters to purchase, and of the Company to sell, the Option Shares) shall
terminate without liability on the part of any non-defaulting Underwriter or the Company, except
that the Company will continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the term “Underwriter” includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in Schedule 1
hereto that, pursuant to this Section 9, purchases Shares that a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company or the Operating Partnership for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Shares of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be terminated by the
Representative by notice given to and received by the Company prior to delivery of and payment for
the Firm Shares if, prior to that time, any of the events described in Sections 7(k) and 7(l) shall
have occurred or if the Underwriters shall decline to purchase the Shares for any reason permitted
under this Agreement.
11. Reimbursement of Underwriters’ Expenses. If the Company shall fail to tender the Shares
for delivery to the Underwriters for any reason or the Underwriters shall decline to purchase the
Shares because any condition to the Underwriters’ obligations hereunder required to be fulfilled by
the Company or any of its subsidiaries is not fulfilled for any reason, the Company will reimburse
the Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the proposed purchase
of the Shares, and upon demand the Company shall pay the full amount thereof to the Representative.
If this Agreement is terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account
of those expenses.
12. Research Analyst Independence. The Company and the Operating Partnership acknowledge that
the Underwriters’ research analysts and research departments are required to be independent from
their respective investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters’ research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the Company and/or the
offering that differ from the views of their respective investment banking divisions. The Company
and the Operating Partnership hereby waive and release, to the fullest extent permitted by law, any
claims that the Company or the Operating Partnership may have against the Underwriters with respect
to any conflict of interest that may arise from the fact that the views expressed by their
independent research analysts and research
28
departments may be different from or inconsistent with the views or advice communicated to the
Company or the Operating Partnership by such Underwriters’ investment banking divisions. The
Company and the Operating Partnership acknowledge that each of the Underwriters is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long or short positions
in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
13. No Fiduciary Duty. The Company and the Operating Partnership acknowledge and agree that
in connection with this offering, sale of the Shares or any other services the Underwriters may be
deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between the Company, the
Operating Partnership and any other person, on the one hand, and the Underwriters, on the other,
exists; (ii) the Underwriters are not acting as advisors, expert or otherwise, to either the
Company or the Operating Partnership, including, without limitation, with respect to the
determination of the public offering price of the Shares, and such relationship between the Company
and the Operating Partnership, on the one hand, and the Underwriters, on the other, is entirely and
solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the
Underwriters may have to the Company or the Operating Partnership shall be limited to those duties
and obligations specifically stated herein; and (iv) the Underwriters and their respective
affiliates may have interests that differ from those of the Company and the Operating Partnership.
The Company and the Operating Partnership hereby waive any claims that the Company or the Operating
Partnership may have against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering.
14. Notices, Etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Registration (Fax: 000-000-0000), with a copy, in the case of
any notice pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000;
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Registration Statement,
Attention: Xxxxxxx X. Xxxxxx (Fax: 000-000-0000); and
(c) if to the Operating Partnership, shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: Xxxxxxx X. Xxxxxx (Fax: 000-000-0000).
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Operating Partnership shall be entitled to act and rely upon any
29
request, consent, notice or agreement given or made on behalf of the Underwriters by the
Representative.
15. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, the Operating Partnership and their respective
successors. This Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and agreements of the
Company and the Operating Partnership contained in this Agreement shall also be deemed to be for
the benefit of the trustees, officers and employees of the Underwriters and each person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 8(b) of this Agreement shall be
deemed to be for the benefit of the trustees and persons named to become trustees of the Company,
the officers of the Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons referred to in this
Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or
any provision contained herein.
16. Survival. The respective indemnities, representations, warranties and agreements of the
Company, the Operating Partnership and the Underwriters contained in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Shares and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
17. Definition of the Terms “Business Day” and “Subsidiary”. For purposes of this Agreement,
(a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on
which banking institutions in New York are generally authorized or obligated by law or executive
order to close and (b) “subsidiary” has the meaning set forth in Rule 405.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
19. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(Signature pages follows)
If the foregoing correctly sets forth the agreement among the Company, the Operating
Partnership and the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
| Very truly yours, Chatham Lodging Trust |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Executive Officer and President | |||
| Chatham Lodging, L.P. |
||||
| By: | Chatham Lodging Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Executive Officer and President | |||
S-1
Accepted:
Barclays Capital Inc.
For itself and as Representative
of the several Underwriters named
in Schedule 1 hereto
of the several Underwriters named
in Schedule 1 hereto
By Barclays Capital Inc.
| By: | /s/ Xxxxxxxx Xxxx | |||
| Authorized Representative | ||||
S-2
SCHEDULE 1
| Number of Firm | ||||
| Underwriters | Shares | |||
Barclays Capital Inc. |
1,800,000 | |||
UBS Securities LLC |
920,000 | |||
FBR Capital Markets & Co. |
320,000 | |||
Xxxxxx Xxxxxx & Company, Inc. |
280,000 | |||
Credit Agricole Securities (USA) Inc. |
200,000 | |||
Xxxxx Xxxxxxx & Co. |
200,000 | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
200,000 | |||
JMP Securities LLC |
80,000 | |||
Total |
4,000,000 | |||
SCHEDULE 2
PERSONS DELIVERING LOCK-UP AGREEMENTS
Executive Officers
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxx
Trustees
Miles Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. XxXxxx
Xxxx X. Xxxxxxx
C. Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. XxXxxx
Xxxx X. Xxxxxxx
C. Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
SCHEDULE 3
ORALLY CONVEYED PRICING INFORMATION
1. The public offering price is $16.00 per common share
2. 4,000,000 common shares offered
