Contract
Exhibit 1.1
PHYSICIANS REALTY L.P.
(a Delaware limited partnership)
$400,000,000 4.300% Senior Notes due 2027
UNDERWRITING AGREEMENT
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PHYSICIANS REALTY L.P.
(a Delaware limited partnership)
$400,000,000 4.300% Senior Notes due 2027
UNDERWRITING AGREEMENT
March 2, 2017
X.X. Xxxxxx Securities LLC
Credit Agricole Securities (USA) Inc.
Xxxxxxxxx LLC
as Representatives of the several Underwriters
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Credit Agricole Securities (USA) Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Jefferies LLC
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Physicians Realty Trust, a Maryland real estate investment trust (the “Company”), and
Physicians Realty L.P., a Delaware limited partnership (the “Operating Partnership”), confirm
their agreement with X.X. Xxxxxx Securities LLC (“JPM”), Credit Agricole Securities (USA) Inc.
(“Credit Agricole”) and Xxxxxxxxx LLC (“Jefferies”), and each of the other Underwriters named in
Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom JPM, Credit Agricole and
Jefferies are acting as representatives (in such capacity, the “Representatives”), with respect to the
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sale by the Operating Partnership and the purchase by the Underwriters, acting severally and not
jointly, of the principal amount of the Operating Partnership’s 4.300% Senior Notes due 2027 (the
“Notes”) set forth opposite their respective names in Schedule A hereto. The aggregate principal
amount of the Notes sold to all of the Underwriters will be equal to $400,000,000. The Notes will
be fully and unconditionally guaranteed on a senior unsecured basis as to payment of the principal
thereof, and premium, if any, and interest thereon (the “Guarantee,” and together with the Notes,
the “Securities”) by the Company. The Securities will be issued pursuant to an indenture (the “Base
Indenture”), to be dated as of the Closing Time (as defined below), among the Operating
Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee
(the “Trustee”), as supplemented by a supplemental indenture, to be dated as of the Closing Time
(the “Supplemental Indenture,” and together with the Base Indenture, the “Indenture”).
The Company and the Operating Partnership understand that the Underwriters propose to
make a public offering of the Securities as soon as the Representatives deem advisable after this
underwriting agreement (this “Agreement”) has been executed and delivered.
The Company and the Operating Partnership have filed with the Securities and Exchange
Commission (the “Commission”) an “automatic shelf registration statement” under the Securities
Act of 1933, as amended (the “1933 Act”), on Form S-3ASR (No. 333-216214), including a base
prospectus, as amended by Post-Effective Amendment No. 1 thereto, covering the registration of
certain securities, including the Securities, under the 1933 Act and the rules and regulations
promulgated thereunder (the “1933 Act Regulations”), each of which became effective upon filing
under Rule 462(e) under the 1933 Act Regulations (“Rule 462(e)”). Such registration statement,
at any given time, means such registration statement, as amended by any post-effective
amendments thereto at such time, including the exhibits and any schedules thereto at such time,
the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act at such time, and the information and documents otherwise
deemed to be a part thereof pursuant to Rule 430B under the 1933 Act Regulations (“Rule 430B”),
including any prospectus supplement relating to the Securities that is filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”) at such time, is referred to
herein as the “Registration Statement.”
Each preliminary prospectus, including the base prospectus and each preliminary
prospectus supplement, related to the offering of the Securities and filed with the Commission
pursuant to Rule 424(b), including the documents incorporated or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to
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herein as a “preliminary prospectus.” Promptly after execution and delivery of this Agreement,
the Company and the Operating Partnership will prepare and file a final prospectus relating to the
Securities in accordance with the provisions of Rule 424(b) under the 1933 Act. The final
prospectus, including the base prospectus and the final prospectus supplement, in the form first
furnished or made available to the Underwriters for use in connection with the offering of the
Securities, including the documents incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 and of Form S-3 under the 1933 Act, are collectively referred to herein
as the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system or any successor system (“XXXXX”).
As used in this Agreement:
“Applicable Time” means 3:00 p.m. New York City time, on March 2, 2017.
“General Disclosure Package” means any Issuer General Use Free Writing
Prospectuses issued at or prior to the Applicable Time and the most recent preliminary prospectus
(including any documents incorporated therein by reference) that is distributed to investors prior
to the Applicable Time all considered together.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any
“free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”))
relating to the Securities that is (i) required to be filed with the Commission by the Company or
the Operating Partnership, (ii) a “road show that is a written communication” within the meaning
of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from
filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms, in each case in the form filed or
required to be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s and/or the Operating Partnership’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors (other than a “bona
fide electronic road show,” as defined in Rule 433), as evidenced by its being specified in Schedule
B hereto.
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“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Properties” means the real properties described in the Registration Statement, the
General Disclosure Package and the Prospectus as being owned by the Operating Partnership
directly or indirectly through its subsidiaries.
All references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration Statement, any
preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to
include all such financial statements and schedules and other information which is incorporated
by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to
the execution and delivery of this Agreement; and all references in this Agreement to amendments
or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall
include the filing of any document under the Securities Exchange Act of 1934, as amended (the
“1934 Act”), which is incorporated by reference in or otherwise deemed by 1933 Act Regulations
to be a part of or included in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be, at or after the execution and delivery of this Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating Partnership.
The Company and the Operating Partnership, jointly and severally, represent and warrant to each
Underwriter as of the date hereof, the Applicable Time and the Closing Time, and agree with each
Underwriter, as follows:
(i) Registration Statement and Prospectuses. The Company and the
Operating Partnership meet the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement is an “automatic shelf registration statement” (as defined in Rule
405). The Registration Statement and any post-effective amendment thereto, became
effective on filing under Rule 462(e). No stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act, no order preventing or
suspending the use of any preliminary prospectus or the Prospectus has been issued and no
proceedings for any of those purposes have been instituted or are pending or, to the
Company’s or the Operating Partnership’s knowledge, contemplated. The Company and
the Operating Partnership have complied with each request (if any) from the Commission
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for additional information and there are no outstanding or unresolved comments from the
Commission or its staff.
Each of the Registration Statement and any post-effective amendment thereto, at
the time of its effectiveness and at each deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied in all
material respects with the requirements of the 1933 Act and the 1933 Act Regulations,
including with respect to all financial statement requirements applicable to the Company
and the Operating Partnership. Each preliminary prospectus, the Prospectus and any
amendment or supplement thereto, at the time each was filed with the Commission,
complied in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations. Each preliminary prospectus, the Prospectus and any amendment or
supplement thereto, at the time each was filed with the Commission, complied in all
material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
Each preliminary prospectus delivered to the Underwriters for use in connection with this
offering and the Prospectus was or will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
The documents incorporated or deemed incorporated by reference in the
Registration Statement, any preliminary prospectus and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, as the case
may be, complied or will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act
Regulations”).
(ii) Accurate Disclosure. Neither the Registration Statement nor any
amendment thereto, at its effective time or at the Closing Time contained, contains or will
contain an untrue statement of a material fact or omitted, omits or will omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. As of the Applicable Time, neither (A) the General Disclosure Package nor
(B) any individual Issuer Limited Use Free Writing Prospectus, when considered together
with the General Disclosure Package, included, includes or will include an untrue statement
of a material fact or omitted, omits or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading. Neither the Prospectus nor any amendment or supplement thereto
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(including any prospectus wrapper), as of its issue date, at the time of any filing with the
Commission pursuant to Rule 424(b) or, at the Closing Time, included, includes or will
include an untrue statement of a material fact or omitted, omits or will omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The documents incorporated
by reference in the Registration Statement, the General Disclosure Package and the
Prospectus, at the time the Registration Statement became effective or when such
documents incorporated by reference were filed with the Commission, as the case may be,
when read together with the other information in the Registration Statement, the General
Disclosure Package or the Prospectus, as the case may be, did not and will not include an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
The representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement (or any amendment thereto), the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein. For purposes of this
Agreement, the only information so furnished shall be the information in the third
paragraph under the heading “Underwriting (Conflicts of Interest)” and the information in
the first and second paragraphs under the heading “Underwriting (Conflicts of Interest)-
Price stabilization and short positions,” in each case contained in the Prospectus
(collectively, the “Underwriter Information”).
(iii) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus
conflicts or will conflict with the information contained in the Registration Statement or
the Prospectus, including any document incorporated by reference therein, and any
preliminary or other prospectus deemed to be a part thereof that has not been superseded
or modified.
(iv) Well-Known Seasoned Issuer. (A) At the time of filing of the
Registration Statement, (B) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d)
of the 1934 Act or form of prospectus), (C) at the time the Company or any person acting
on its behalf (within the meaning, for this clause only, of Rule 163(c) under the 0000 Xxx)
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made any offer relating to the Securities in reliance on the exemption of Rule 163 under
the 1933 Act and (D) at the Applicable Time, each of the Company and the Operating
Partnership was and is a “well-known seasoned issuer” (as defined in Rule 405). The
Securities, since their registration on the Registration Statement, have been and remain
eligible for registration by the Company and the Operating Partnership on a Rule 405
“automatic shelf registration statement” and neither the Company nor the Operating
Partnership has received from the Commission any notice pursuant to Rule 401(g)(2) of
the 1933 Act Regulations objecting to the use of the automatic shelf registration statement
form.
(v) Not Ineligible Issuer. At the time of filing the Registration Statement
and any post-effective amendment thereto, at the earliest time thereafter that the Company,
the Operating Partnership or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
hereof, neither the Company nor the Operating Partnership was or is an “ineligible issuer,”
as defined in Rule 405, without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company or the Operating Partnership
be considered an ineligible issuer.
(vi) [Reserved]
(vii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement, the General
Disclosure Package and the Prospectus are independent public accountants as required by
the 1933 Act, the 1933 Act Regulations, the 1934 Act Regulations and the Public
Accounting Oversight Board.
(viii) Rule 163. Any offer that is a written communication relating to the
Securities made by the Company or the Operating Partnership or any person acting on their
behalf (within the meaning, for this sentence only, of Rule 163(c) under the 0000 Xxx) prior
to the filing of the Registration Statement has been filed with the Commission in
accordance with Rule 163 under the 1933 Act and otherwise complied with the
requirements of Rule 163 under the 1933 Act, including without limitation the legending
requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act
provided by Rule 163.
(ix) Financial Statements; Non-GAAP Financial Measures. The financial
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statements included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus, together with the related schedules and notes,
present fairly in all material respects: the financial position of the Company, the Operating
Partnership and their respective consolidated subsidiaries on a consolidated basis at the
dates indicated and the statement of operations, shareholders’ equity and cash flows of the
Company, the Operating Partnership and their respective consolidated subsidiaries for the
periods specified, except as may be stated in the related notes thereto; said financial
statements have been prepared in conformity with U.S. generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods involved, except
as may be stated in the related notes thereto. The supporting schedules, if any, present fairly
in all material respects and in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information included in the
Registration Statement, the General Disclosure Package and the Prospectus present fairly
in all material respects the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included therein. The pro forma
financial statements and the related notes thereto included in the Registration Statement,
the General Disclosure Package and the Prospectus present fairly in all material respects
the information shown therein, have been prepared in accordance with the Commission’s
rules and guidelines with respect to pro forma financial statements and have been properly
compiled on the basis described therein, and the Company has determined the assumptions
used in the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to therein. Except
as included therein, no historical or pro forma financial statements or supporting schedules
are required to be included or incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus under the 1933 Act, the 1933 Act
Regulations or the 1934 Act Regulations. All disclosures contained in the Registration
Statement, the General Disclosure Package or the Prospectus, or incorporated by reference,
regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the 1934 Act and Item 10 of
Regulation S-K of the 1933 Act, to the extent applicable. The interactive data in eXtensible
Business Reporting Language incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, if any, fairly presents the information
called for in all material respects and has been prepared in accordance with the
Commission’s rules and guidelines applicable thereto.
(x) No Material Adverse Change in Business. Except as otherwise stated
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therein, since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the management,
earnings, business affairs or business prospects of the Company, the Operating Partnership
and their respective subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been no
transactions entered into by the Company, the Operating Partnership or any of their
respective subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company, the Operating Partnership and their respective
subsidiaries considered as one enterprise, and (C) except for quarterly dividends on the
Common Shares, $0.01 par value per share (the “Common Shares”), in amounts per share
that are consistent with past practice, and regular quarterly distributions on the common
and preferred units of partnership interests in the Operating Partnership (collectively, the
“OP Units”), in each case in amounts per share that are consistent with past practice, there
has been no dividend or other distribution of any kind declared, paid or made by the
Company on any class of its shares of beneficial interest.
(xi) Good Standing of the Company. The Company has been duly organized
and is validly existing as a real estate investment trust in good standing under the laws of
the State of Maryland and has trust power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus and to enter into and perform its
obligations under this Agreement, and, as the sole general partner of the Operating
Partnership, to cause the Operating Partnership to enter into and perform the Operating
Partnership’s obligations under this Agreement; and the Company is duly qualified as a
foreign real estate investment trust to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(xii) Good Standing of the Operating Partnership. The Operating Partnership
has been duly formed and is validly existing as a limited partnership in good standing under
the laws of the State of Delaware and has partnership power and authority to own or lease,
as the case may be, and to operate its properties and to conduct its business as described in
the General Disclosure Package and the Prospectus and to enter into and perform its
obligations under this Agreement; and the Operating Partnership is duly qualified as a
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foreign partnership to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect. The Company is the sole general
partner of the Operating Partnership. The aggregate percentage interests of the Company
in the Operating Partnership is, and at the Closing Time, will be, as set forth in the
Prospectus. The Second Amended and Restated Partnership Agreement of the Operating
Partnership has been duly and validly authorized, executed and delivered by or on behalf
of the Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to general
principles of equity and, with respect to rights to indemnity and contribution thereunder,
except as rights may be limited by applicable law or policies underlying such law.
(xiii) Good Standing of Subsidiaries. Each “significant subsidiary” of the
Company or the Operating Partnership (as such term is defined in Rule 1-02 of Regulation
S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized
and is validly existing in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate or similar power and authority to own, lease
and operate its properties and to conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing would not result
in a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Operating Partnership, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such Subsidiary.
(xiv) Capitalization. The authorized capitalization of the Operating
Partnership, if any, is as set forth in the Registration Statement, the General Disclosure
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Package and the Prospectus in the column entitled “Actual” under the caption
“Capitalization” (except for subsequent issuances of OP Units, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the Registration
Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Registration Statement, the General
Disclosure Package and the Prospectus). The issued and outstanding OP Units have been
duly authorized and validly issued and are fully paid. Except as described in the General
Disclosure Package and the Prospectus, there are no other OP Units outstanding as of the
date hereof other than those owned by the Company. Except as set forth in the General
Disclosure Package and the Prospectus, there are no outstanding options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities or interests for ownership interests in the
Company, the Operating Partnership or their subsidiaries, including OP Units or other
ownership interests of the Operating Partnership.
(xv) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and the Operating Partnership.
(xvi) Authorization and Enforceability of the Indenture. The Indenture has
been duly qualified under the Trust Indenture Act of 1939 and, at the Closing Time, will
have been duly authorized, executed and delivered by each of the Operating Partnership
and the Company and, assuming due authorization, execution and delivery by the Trustee,
will constitute a valid and legally binding agreement of each of the Operating Partnership
and the Company, enforceable against the Operating Partnership and the Company in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
rights and remedies of creditors or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(xvii) Authorization and Enforceability of the Notes. The Notes, when issued,
will be in the form contemplated by the Indenture, and, at the Closing Time, will have been
duly authorized for issuance and sale pursuant to this Agreement and the Indenture and
duly executed by the Operating Partnership, and, when authenticated and delivered in the
manner provided for in the Indenture and paid for by the Underwriters in accordance with
the terms of this Agreement, will constitute valid and legally binding obligations of the
Operating Partnership, enforceable against the Operating Partnership in accordance with
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its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting rights and
remedies of creditors or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and will be entitled to the
benefits of the Indenture.
(xviii) Authorization and Enforceability of the Guarantee. The Guarantee, when
executed, will be in the form contemplated by the Indenture, and, at the Closing Time will
have been duly authorized, executed and delivered by the Company and, when the Notes
have been authenticated and delivered in the manner provided for in the Indenture and paid
for by the Underwriters in accordance with the terms of this Agreement, will constitute the
valid and legally binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting the rights and remedies of creditors or by general
principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xix) Description of the Securities and the Indenture. The Securities and the
Indenture conform in all material respects to the statements relating thereto contained in
the Registration Statement, the General Disclosure Package and the Prospectus.
(xx) Registration Rights. There are no persons with registration rights or
other similar rights to have any securities registered for sale pursuant to the Registration
Statement or otherwise registered for sale or sold by the Company or the Operating
Partnership under the 1933 Act pursuant to this Agreement, other than those rights that
have been disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus.
(xxi) Absence of Violations, Defaults and Conflicts. None of the Company,
the Operating Partnership or any of their respective subsidiaries is (A) in violation of its
declaration of trust (or charter), by-laws, certificate of limited partnership, partnership
agreement or similar organizational document, (B) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company, the Operating Partnership, or any of their
respective subsidiaries is a party or by which it or any of them may be bound or to which
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any of the properties or assets of the Company, the Operating Partnership or any of their
respective subsidiaries is subject (collectively, “Agreements and Instruments”), except for
such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect,
or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of
any arbitrator, court, governmental body, regulatory body, administrative agency or other
authority, body or agency having jurisdiction over the Company, the Operating
Partnership, or any of their respective subsidiaries or any of their respective properties,
assets or operations (each, a “Governmental Entity”), except for such violations that would
not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement, the General Disclosure Package
and the Prospectus (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described therein under the caption “Use of
Proceeds”) and compliance by the Company and the Operating Partnership with their
respective obligations hereunder have been duly authorized by all necessary corporate or
partnership action (as applicable) and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any properties or assets of the Company, the
Operating Partnership, or any of their respective subsidiaries pursuant to, the Agreements
and Instruments (except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not reasonably be expected, singly or in the
aggregate, to result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the declaration of trust (or charter), by-laws, certificate of
limited partnership, partnership agreement or similar organizational document of the
Company, the Operating Partnership, or any of their respective subsidiaries or any law,
statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As
used herein, a “Repayment Event” means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company, the Operating Partnership, or any of their
respective subsidiaries.
(xxii) Absence of Labor Dispute. No labor dispute with the employees of the
Company, the Operating Partnership or any of their respective subsidiaries exists or, to the
knowledge of the Company or the Operating Partnership, is imminent, and the Company
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and the Operating Partnership are not aware of any existing or imminent labor disturbance
by the employees of any of its or any subsidiary’s principal suppliers, manufacturers,
customers or contractors, which, in either case, would reasonably be expected to result in
a Material Adverse Effect.
(xxiii) ERISA. Except as described in the Registration Statement, the General
Disclosure Package and the Prospectus or as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, (A) each employee
benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), that is maintained, administered or
contributed to by the Company, the Operating Partnership or any of member of their
Controlled Group (defined as any trade or business (whether or not incorporated) (1) under
common control within the meaning of Section 4001(b)(1) of ERISA with the Company
or Operating Partnership or (2) which together with the Company or Operating Partnership
is treated as a single employer under Section 414(t) of the Code), for employees or former
employees of the Company, the Operating Partnership or any of member of their
Controlled Group (a “Plan”) has been maintained in compliance in all material respects
with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including, but not limited to, ERISA and the Internal Revenue Code of 1986, as amended
(the “Code”); (B) no prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions
effected pursuant to a statutory or administrative exemption, (C)(1) no Plan is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA or (2) if a Plan is
subject to such funding rules and Title IV of ERISA, no failure to satisfy the obligations
under such rules has occurred or exists with respect to such Plan, no “reportable event”
(within the meaning of Section 4043 of ERISA) has occurred with respect to such Plan,
and no event or condition has occurred with respect to such Plan that would give rise to
liability under Title IV of ERISA, and (D)(1) no Plan is a “multiemployer plan” (as defined
in Section 4011(c)(3) of ERISA) or (2) if a Plan is a “multiemployer plan,” no event or
condition has occurred with respect to such Plan that would give rise to any liability for the
Company or the Operating Partnership.
(xxiv) Absence of Proceedings. Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any Governmental Entity now
pending or, to the knowledge of the Company or the Operating Partnership, threatened,
15
against or affecting the Company, the Operating Partnership or any of their respective
subsidiaries, which would reasonably be expected to result in a Material Adverse Effect,
or which would reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the performance by
the Company or the Operating Partnership of their respective obligations hereunder; and
the aggregate of all pending legal or governmental proceedings to which the Company, the
Operating Partnership or any of their respective subsidiaries is a party or of which any of
their respective properties or assets is the subject which are not described in the
Registration Statement, the General Disclosure Package and the Prospectus, including
ordinary routine litigation incidental to the business, would not reasonably be expected to
result in a Material Adverse Effect.
(xxv) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the General Disclosure Package or
the Prospectus or to be filed as exhibits to the Registration Statement which have not been
so described and filed as required.
(xxvi) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any Governmental
Entity is necessary or required for the performance by the Company, the Operating
Partnership or any of their respective subsidiaries of their obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement, except such as have
been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations,
the rules of the New York Stock Exchange, state securities laws or the rules of the Financial
Industry Regulatory Authority, Inc. (“FINRA”).
(xxvii) Possession of Licenses and Permits. The Company, the Operating
Partnership and their respective subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”) issued by the
appropriate Governmental Entities necessary to conduct the business now operated by
them, except where the failure so to possess would not, singly or in the aggregate, result in
a Material Adverse Effect. The Company, the Operating Partnership and their respective
subsidiaries are in compliance with the terms and conditions of all Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and in full force and
16
effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or in the aggregate,
result in a Material Adverse Effect. None of the Company, the Operating Partnership or
any of their respective subsidiaries have received any notice of proceedings relating to the
revocation or modification of any Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Effect.
(xxviii) Real Property. Except as described in the Registration Statement, the
General Disclosure Package and the Prospectus, the Company and the Operating
Partnership, directly or indirectly through their subsidiaries, has good and marketable title
(or in the case of ground leases, a valid leasehold interest) to all real property owned by
them and good title to all other properties owned by them, directly or indirectly through
their subsidiaries, in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as (A) are described
in the Registration Statement, the General Disclosure Package and the Prospectus or (B)
do not, singly or in the aggregate, materially affect the value of such property and do not
interfere materially with the use made and proposed to be made of such property by the
Company or the Operating Partnership, directly or indirectly through their respective
subsidiaries that own such property; and all of the leases and subleases material to the
business of the Company, the Operating Partnership and their respective subsidiaries,
considered as one enterprise, and under which the Company and the Operating Partnership,
directly or indirectly through one of their subsidiaries, holds Properties, are in full force
and effect, and none of the Company, the Operating Partnership or any of their respective
subsidiaries have received any written notice of any material claim of any sort that has been
asserted against the Company, the Operating Partnership or any of their respective
subsidiaries by anyone adverse to the rights of the Company, the Operating Partnership or
any of their respective subsidiaries under any of the leases or subleases mentioned above,
or affecting or questioning the rights of the Company, the Operating Partnership or any of
their respective subsidiaries to the continued possession of the leased or subleased premises
under any such lease or sublease. Except as otherwise set forth in or described in the
Registration Statement, the General Disclosure Package and the Prospectus, the mortgages
and deeds of trust encumbering the Properties are not convertible into debt or equity
securities of the entity owning such Property or of the Company, the Operating Partnership
or any of their respective subsidiaries, and such mortgages and deeds of trust will not be
cross-defaulted or cross-collateralized to any property not owned, directly or indirectly, in
17
whole or in part, by the Company, the Operating Partnership or any of their respective
subsidiaries. To the knowledge of the Company and the Operating Partnership, none of the
tenants under any lease of space at any of the Properties that, singly or in the aggregate, is
material to the Company, the Operating Partnership or any of their respective subsidiaries
considered as one enterprise is the subject of bankruptcy, reorganization or similar
proceedings. None of the Company, the Operating Partnership or any of their respective
subsidiaries have received from any Governmental Entity any written notice of any
condemnation of or zoning change materially affecting any Property or any part thereof,
and the Company, the Operating Partnership or any of their respective subsidiaries have no
knowledge of any such condemnation or zoning change which is threatened and, in each
case, which if consummated would reasonably be expected to result in a Material Adverse
Effect. Each of the Properties complies in all material respects with all applicable codes,
ordinances, laws and regulations (including without limitation, building and zoning codes,
laws and regulations and laws relating to access to the Properties), except for failures to
the extent disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus and except for such failures to comply that would not individually or in the
aggregate reasonably be expected to result in a Material Adverse Effect. None of the
Company, the Operating Partnership or any of their respective subsidiaries have received
written notice of proposed material special assessment or any proposed change in any
property tax, zoning or land use law or availability of water affecting any Property that
would reasonably be expected to result in a Material Adverse Effect. Except as described
in the Registration Statement, the General Disclosure Package and the Prospectus, the
Company, the Operating Partnership or one or more of their respective subsidiaries have
obtained, on or prior to the date hereof, one or more title insurance policies on, whether
directly or through assignment or endorsements, or a so-called “fairway-endorsement” on
existing title policies covering, the fee interests (or leasehold interests as the case may be)
from a nationally recognized title insurance company, or, if such title policy has not been
issued, a binding commitment by such title insurance company to issue such a policy,
which policies include commercially reasonable exceptions, with coverage in such
amounts as are commercially reasonable for the assets owned or leased by the Company,
the Operating Partnership and their respective subsidiaries and that are consistent with the
types and amounts of insurance typically maintained by owners of similar properties, and
such title insurance policies, fairway endorsements or binding commitments, as the case
may be, are in full force and effect in all material respects. Except as would not,
individually or in the aggregate reasonably be expected to result in a Material Adverse
18
Effect, there are no encroachments upon any Property by improvements on an adjacent
property, and none of the improvements on any Property encroach on any adjacent
property, streets or alleys. Except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus, none of the Company, the Operating Partnership
or any of their respective subsidiaries is a party to any material lease that is required to be
disclosed in the Registration Statement or the Prospectus. Except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus, none of the
Company, the Operating Partnership or any of their respective subsidiaries holds any
Property under a ground lease, and true and complete copies of each ground lease described
in the Registration Statement, the General Disclosure Package and the Prospectus have
been provided to the Underwriters or their counsel. To the knowledge of the Company and
the Operating Partnership, all real property owned or leased by the Company, the Operating
Partnership or a Subsidiary is free of material structural defects and all building systems
contained therein are in good working order in all material respects, subject to ordinary
wear and tear or, in each instance, the Company, the Operating Partnership or their
respective subsidiaries have created an adequate reserve to effect reasonably required
repairs, maintenance and capital expenditures; to the knowledge of the Company and the
Operating Partnership, water, storm water, sanitary sewer, electricity and telephone service
are all available at the property lines of such property over duly dedicated streets or
perpetual easements of record benefiting such property; except as described in the
Registration Statement, the General Disclosure Package and the Prospectus, to the
knowledge of the Company and the Operating Partnership, there is no pending or
threatened special assessment, tax reduction proceeding or other action that, individually
or in the aggregate, could reasonably be expected to increase or decrease the real property
taxes or assessments of any of such property, that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect. To the knowledge of the
Company and the Operating Partnership, except as set forth in or described in the
Registration Statement, the General Disclosure Package and the Prospectus, including as
may be reflected in the pro forma financial statements, and except as would not,
individually or in the aggregate, reasonably be expected have a Material Adverse Effect:
(A) no rentals or other amounts due under any lease have been paid more than one (1)
month in advance; (B) no tenant has asserted in writing any defense or set-off against the
payment of rent in connection with any lease nor has any tenant contested any tax,
operating cost or other escalation payment or occupancy charge, or any other amounts
payable under its leases; (C) all tenants, licensees, franchisees or other parties under any
19
lease, exhibit, schedule, amendment or other document related to the lease of space at the
Properties (the “Leases”) are in possession of their respective premises; (D) none of the
Leases has been assigned, mortgaged, pledged, sublet, hypothecated or otherwise
encumbered, except in connection with secured debt described in the Registration
Statement, the General Disclosure Package and the Prospectus; (E) none of the Company,
the Operating Partnership or any of their respective subsidiaries has waived any material
provision under any of the Leases; (F) there are no uncured events of default, or events that
with the giving of notice or passage of time, or both, would constitute an event of default,
by any tenant under any of the terms and provisions of the Leases; and (G) no tenant under
any of the Leases and no third party has a right of first refusal or other right to purchase
the premises demised under such Lease.
(xxix) Possession of Intellectual Property. The Company, the Operating
Partnership and their respective subsidiaries have access to adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property (collectively, the
“Intellectual Property”) necessary to carry on the business now operated by them, and none
of the Company, the Operating Partnership or any of their respective subsidiaries have
received any notice or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to protect the interest
of the Company, the Operating Partnership or any of their respective subsidiaries therein,
and which infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xxx) No Acquisitions or Dispositions. (i) There are no contracts, letters of
intent, term sheets, agreements, arrangements or understandings with respect to the direct
or indirect acquisition or disposition by any of the Company, the Operating Partnership or
their respective subsidiaries of interests in assets or real property that are required to be
described in the Registration Statement, the General Disclosure Package and the
Prospectus that are not so described; and (ii) except as described in the Registration
Statement and the Prospectus, none of the Company, the Operating Partnership or any of
their respective subsidiaries or Predecessor Entities (or subsidiary thereof) has sold any
real property to a third party during the immediately preceding twelve (12) calendar
20
months, except for such sales as would not reasonably be expected to have a Material
Adverse Effect.
(xxxi) Credit Agreements; Mortgages; Deeds of Trust. The Company and the
Operating Partnership have provided to the Representatives true and complete copies of all
credit agreements, mortgages, deeds of trust, guaranties, side letters, and other material
documents evidencing, securing or otherwise relating to any secured or unsecured
indebtedness of the Company, the Operating Partnership or any of their respective
subsidiaries, and none of the Company, Operating Partnership and their respective
subsidiaries that is party to any such document is in default thereunder, nor has an event
occurred which with the passage of time or the giving of notice, or both, would become a
default by any of them under any such document.
(xxxii) Environmental Laws. Except as described in the Registration Statement,
the General Disclosure Package and the Prospectus or would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (A) none of the Company,
the Operating Partnership or any of their respective subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule
of common law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company, the Operating Partnership and their respective
subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company and the Operating Partnership, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) to the
knowledge of the Company and the Operating Partnership, there are no events or
circumstances that would reasonably be expected to form the basis of an order for clean-
21
up or remediation, or an action, suit or proceeding by any private party or Governmental
Entity, against or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws. To the knowledge of the Company or the Operating
Partnership, there have been no and are no (i) aboveground or underground storage tanks,
(ii) polychlorinated biphenyls (“PCBs”) or PCB-containing equipment, (iii) asbestos or
asbestos containing materials, (iv) lead based paints, (v) dry-cleaning facilities, or (vi) wet
lands, in each case in, on, under, or adjacent to any Property or other assets owned by the
Company, the Operating Partnership or their respective subsidiaries the existence of which
has had, or is reasonably expected to have, a Material Adverse Effect.
(xxxiii) Accounting Controls and Disclosure Controls. Except as described in
the Registration Statement, the General Disclosure Package and the Prospectus, the
Company and the Operating Partnership maintain effective internal control over financial
reporting (as defined under Rule 13-a15 and 15d-15 under the 1934 Act Regulations) and
a system of internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management’s general or specific
authorization; (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences; and (E) the interactive data in eXtensible Business Reporting Language
incorporated by reference in the Registration Statement, the General Disclosure Package
and the Prospectus fairly present the information called for in all material respects and are
prepared in accordance with the Commission’s rules and guidelines applicable thereto.
Except as described in the Registration Statement, the General Disclosure Package and the
Prospectus, since the end of the Company’s most recent audited fiscal year, there has been
(1) no material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (2) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting. The Company and the Operating
Partnership maintain an effective system of disclosure controls and procedures (as defined
in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations) that are designed to
ensure that information required to be disclosed by the Company in the reports that it files
or submits under the 1934 Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission’s rules and forms, and is accumulated and
22
communicated to the Company’s management, including its principal executive officer or
officers and principal financial officer or officers, as appropriate, to allow timely decisions
regarding disclosure.
(xxxiv) Compliance with the Xxxxxxxx-Xxxxx Act. There is not and there has
been no failure on the part of the Company, the Operating Partnership or any of the
Company’s trustees or officers, in their capacities as such, to comply in all material respects
with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”) with which the Company
or the Operating Partnership are required to comply, including Section 402 related to loans
and Sections 302 and 906 related to certifications.
(xxxv) Federal Tax Status. Commencing with its short taxable year ending
December 31, 2013, the Company has been organized and operated in conformity with the
requirements for qualification and taxation as a real estate investment trust (a “REIT”)
under the Code, and its proposed method of operation will enable it to continue 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 method of operation (inasmuch as they relate to the
Company’s qualification and taxation as a REIT) set forth in the Registration Statement,
the General Disclosure Package and the Prospectus are accurate and fair summaries of the
legal or tax matters described therein in all material respects. The Operating Partnership
is treated as a partnership and not as an association taxable as a corporation for U.S. federal
income tax purposes. No assessment in respect of U.S. federal income taxes has been made
to date against the Company, the Operating Partnership or any of the Subsidiaries that
would reasonably be expected to result in a Material Adverse Effect.
(xxxvi) Payment of Taxes. All United States federal income tax returns of the
Company, the Operating Partnership and their respective subsidiaries required by law to
be filed have been filed, except insofar as the failure to file such returns would not
reasonably be expected to result in a Material Adverse Effect, and all taxes shown by such
returns or otherwise assessed, which are due and payable, have been paid, except taxes and
assessments against which appeals have been or will be promptly taken and as to which
adequate reserves have been provided. The Company, the Operating Partnership and their
respective subsidiaries required by law to file tax returns have filed all other tax returns
that are required to have been filed by them pursuant to applicable foreign, state, local or
23
other law except insofar as the failure to file such returns would not reasonably be expected
to result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns
or pursuant to any assessment received by the Company, the Operating Partnership and
their respective subsidiaries, except for such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been established by the Company or the
Operating Partnership. The charges, accruals and reserves on the books of the Company
and the Operating Partnership in respect of any income and corporation tax liability for any
years not finally determined are adequate to meet any assessments or re-assessments for
additional income tax for any years not finally determined, except to the extent of any
inadequacy that would not reasonably be expected to result in a Material Adverse Effect.
(xxxvii) Insurance. The Company, the Operating Partnership and their respective
subsidiaries carry or are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is generally maintained by
companies of established repute engaged in the same or similar business, and all such
insurance is in full force and effect. Neither the Company nor the Operating Partnership
has any reason to believe that it or any of their subsidiaries will not be able (A) to renew
its existing insurance coverage as and when such policies expire or (B) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to
conduct its business as now conducted and at a cost that would not result in a Material
Adverse Effect. None of the Company, the Operating Partnership or any of their respective
subsidiaries have been denied any insurance coverage which it has sought or for which it
has applied.
(xxxviii) Investment Company Act. Neither the Company nor the Operating
Partnership is required, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as described in the
Registration Statement, the General Disclosure Package and the Prospectus will not be
required, to register as an “investment company” under the Investment Company Act of
1940, as amended (the “1940 Act”).
(xxxix) Absence of Manipulation. None of the Company, the Operating
Partnership or any affiliate of the Company or the Operating Partnership has taken, nor will
the Company, the Operating Partnership or any affiliate of the Company or the Operating
Partnership take, directly or indirectly, any action which is designed, or would be expected,
to cause or result in, or which constitutes, the stabilization or manipulation of the price of
24
any security of the Company to facilitate the sale or resale of the Securities or to result in
a violation of Regulation M under the 1934 Act; provided that no representation is made
in this subsection with respect to the actions of the Underwriters.
(xl) No Unlawful Payments. None of the Company, the Operating
Partnership, any of their respective subsidiaries, or, to the knowledge of the Company and
the Operating Partnership any trustee, officer, agent, employee, affiliate or other person
acting on behalf of the Company, the Operating Partnership or any of their respective
subsidiaries is aware of or has taken any action, directly or indirectly, that would result in
a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”), including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, the Operating Partnership and their
respective subsidiaries and, to the knowledge of the Company and the Operating
Partnership, their respective affiliates have conducted their businesses in compliance with
the FCPA and have instituted, maintain and enforce policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.
(xli) Money Laundering Laws. The operations of the Company, the
Operating Partnership and their respective subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any
Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or
proceeding by or before any Governmental Entity involving the Company, the Operating
Partnership or any of their respective subsidiaries with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company and the Operating Partnership,
threatened.
(xlii) OFAC. None of the Company, the Operating Partnership or any of their
25
respective subsidiaries, or, to the knowledge of the Company and the Operating
Partnership, any trustee, officer, agent, employee, affiliate or representative of the
Company, the Operating Partnership or any of their respective subsidiaries is an individual
or entity (“Person”) currently the subject or target of any sanctions administered or
enforced by the United States Government, including, without limitation, the U.S.
Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury
(“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the
Company, the Operating Partnership or any of their respective subsidiaries located,
organized or resident in a country or territory that is the subject of Sanctions; and the
Company and the Operating Partnership will not directly or indirectly use the proceeds of
the sale of the Securities, or lend, contribute or otherwise make available such proceeds to
any of their respective subsidiaries, joint venture partners or other Person, to fund any
activities of or business with any Person, or in any country or territory, that, at the time of
such funding, is the subject of Sanctions or in any other manner that will result in a violation
by any Person (including any Person participating in the transaction, whether as
underwriter, advisor, investor or otherwise) of Sanctions.
(xliii) Distribution of Offering Material. The Company and the Operating
Partnership have not distributed, and prior to the later of the Closing Time and the
completion of the distribution of the Securities, will not distribute, any offering material in
connection with the offering or sale of the Securities other than any preliminary prospectus,
the Prospectus, any Issuer Free Writing Prospectus, or any other materials, if any, permitted
by the 1933 Act and in each case only with the prior approval of the Representatives.
(xliv) No Equity Awards. Except for grants pursuant to equity incentive plans
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, the Company has not granted to any person or entity, a compensatory stock
option or other compensatory equity-based award to purchase or receive common shares
of beneficial interest of the Company or common units of partnership interests in the
Operating Partnership pursuant to an equity-based compensation plan or otherwise.
(xlv) No Finder’s Fee. Except for the Underwriters’ discounts and
commissions in connection with the offering of the Securities contemplated herein or as
otherwise disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, the Company and the Operating Partnership have not incurred any liability for
26
any brokerage commission, finder’s fees or similar payments in connection with the
offering of the Securities contemplated hereby.
(xlvi) Lending Relationship. Except as disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus, the Company and the Operating
Partnership (i) do not have any material lending or other relationship with any bank or
lending affiliate of any Underwriter and (ii) do not intend to use any of the proceeds from
the sale of the Securities to repay any outstanding debt owed to any affiliate of any
Underwriter.
(xlvii) No Association with FINRA. Except for X.X. Xxxxxxx and Company and
its affiliates and as disclosed in the Registration Statement, the General Disclosure Package
and the Prospectus, none of the Company, the Operating Partnership or, to their knowledge,
any of their respective affiliates (A) is required to register as a “broker” or “dealer” in
accordance with the provisions of the 1934 Act or the rules and regulations thereunder, or
(B) directly, or indirectly through one or more intermediaries, controls or is under common
control with any member firm of FINRA.
(xlviii) Forward-Looking Statement. No forward-looking statement (within the
meaning of Section 27A of the 1933 Act and Section 21E of the 0000 Xxx) contained in
any of the Registration Statement, the General Disclosure Package or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(xlix) Maintenance of Rating. Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus and except as would not
reasonably be expected to have a materially adverse effect on the sale of the Securities to
the Underwriters pursuant to this Agreement, none of the Company, the Operating
Partnership or their respective subsidiaries have any debt securities or preferred stock that
is rated by any “nationally recognized statistical rating agency” (as that term is defined by
the Commission for purposes of Section 3(a)(62) under the 1934 Act).
(l) Statistical and Market-Related Data. Any statistical and market-related
data included in the Registration Statement, the General Disclosure Package or the
Prospectus are based on or derived from sources that the Company and the Operating
Partnership believe, after reasonable inquiry, to be reliable and accurate in all material
respects and, to the extent required, the Company and the Operating Partnership have
27
obtained the written consent to the use of such data from such sources.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or the
Operating Partnership delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company and the Operating Partnership to each
Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Sale of Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Operating Partnership agrees
to issue and sell to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Operating Partnership, at a purchase price of 99.027%
of the aggregate principal amount of the Securities, the principal amount of Securities set forth in
Schedule A hereto opposite the name of such Underwriter, plus any additional principal amount
of Securities which such Underwriter may become obligated to purchase pursuant to the provisions
of Section 10 hereof.
The Company and the Operating Partnership understand that the Underwriters intend to
make a public offering of the Securities as soon after the effectiveness of this Agreement as in the
judgment of the Representatives is advisable, and initially to offer the Securities on the terms set
forth in the General Disclosure Package. The Company and the Operating Partnership
acknowledge and agree that the Underwriters may offer and sell the Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell the Securities purchased
by it to or through any Underwriter.
(b) Payment. Payment of the purchase price for, and delivery of, the Securities shall
be made at the offices of Xxxxx Day, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, or at such
other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New
York City time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York City time)
on any given day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such time and date of payment and
delivery being herein called “Closing Time”).
Payment for the Securities shall be made by wire transfer in immediately available funds
to the bank account(s) specified by the Operating Partnership to the Representatives against
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delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the
Underwriters, of one or more global notes representing the Securities (collectively, the “Global
Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by
the Operating Partnership. The Global Note will be made available for inspection by the
Representatives not later than 1:00 P.M., New York City time, on the business day prior to the
Closing Time.
SECTION 3. Covenants of the Company and the Operating Partnership. The
Company and the Operating Partnership, jointly and severally, covenant with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company,
subject to Section 3(b), will comply with the requirements of Rule 430B, and will notify the
Representatives promptly, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective or any amendment or supplement
to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, including any document incorporated by reference
therein or for additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective amendment or of
any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of
the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if
the Company or the Operating Partnership become the subject of a proceeding under Section 8A
of the 1933 Act in connection with the offering of the Securities. The Company and the Operating
Partnership will effect all filings required under Rule 424(b), in the manner and within the time
period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company and the Operating Partnership will make every
reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any
such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Continued Compliance with Securities Laws. The Company and the Operating
Partnership will comply with the 1933 Act, the 1933 Act Regulations, the 0000 Xxx and the 1934
29
Act Regulations so as to permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Registration Statement, the General Disclosure Package and the
Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception
afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933
Act to be delivered in connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for
the Company, to (i) amend the Registration Statement in order that the Registration Statement will
not include 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, (ii) amend or supplement
the General Disclosure Package or the Prospectus in order that the General Disclosure Package or
the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration
Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case
may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly (A) give the Representatives notice of such event, (B) furnish the
Representatives with copies of any such documents prior to such proposed filing or use, as the case
may be, (C) prepare any amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement, the General Disclosure Package or the
Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed
filing or use, furnish the Representatives with copies of any such amendment or supplement and
(D) file with the Commission any such amendment or supplement; provided that the Company and
the Operating Partnership shall not file or use any such amendment or supplement to which the
Representatives or counsel for the Underwriters shall reasonably object. The Company and the
Operating Partnership will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request. The Company has given the
Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company and the Operating Partnership will
give the Representatives notice of its intention to make any such filing from the Applicable Time
to the Closing Time and will furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company and the Operating Partnership
have furnished or will deliver to the Representatives and counsel for the Underwriters, without
30
charge, signed copies of the Registration Statement as originally filed and each amendment thereto
(including exhibits filed therewith) and signed copies of all consents and certificates of experts,
and will also deliver to the Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company and the Operating Partnership have
delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company and the Operating Partnership hereby
consent to the use of such copies for purposes permitted by the 1933 Act. The Company and the
Operating Partnership will furnish to each Underwriter, without charge, during the period when a
prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be)
required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended
or supplemented) as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Blue Sky Qualifications. The Company and the Operating Partnership will use their
best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as
the Representatives may designate and to maintain such qualifications in effect so long as required
to complete the distribution of the Securities; provided, however, that neither the Company nor the
Operating Partnership shall be obligated to file any general consent to service of process or to
qualify as a foreign real estate investment trust or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(f) Rule 158. The Company and the Operating Partnership will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders
as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds. The Company and the Operating Partnership will use the net
proceeds received from the sale of the Securities in the manner specified in the Registration
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Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Stand-Off Agreement. Prior to the Closing Time, neither the Operating Partnership
nor the Company will, without the prior written consent of the Representatives, offer to sell, enter
into any agreement to sell, or sell, any United States dollar-denominated debt securities issued or
guaranteed by either the Operating Partnership or the Company having a term of more than one
year, other than the Securities.
(i) Reporting Requirements. The Company and the Operating Partnership, during the
period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule
172, would be) required to be delivered under the 1933 Act, will file all documents required to be
filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and 1934 Act Regulations. Additionally, the Company shall report the use of proceeds from
the issuance of the Securities as may be required under Rule 463 under the 1933 Act.
(j) Issuer Free Writing Prospectuses. The Company and the Operating Partnership
agree that, unless they obtain the prior written consent of the Representatives, they will not make
any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed
by the Company or the Operating Partnership with the Commission or retained by the Company
or the Operating Partnership under Rule 433; provided that the Representatives will be deemed to
have consented to the Issuer Free Writing Prospectuses listed on Schedule B hereto and any “road
show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been
reviewed by the Representatives. The Company and the Operating Partnership represent that they
have treated or agree that they will treat each such free writing prospectus consented to, or deemed
consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433,
and that they have complied and will comply with the applicable requirements of Rule 433 with
respect thereto, including timely filing with the Commission where required, legending and record-
keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information contained in the Registration Statement, any preliminary
prospectus or the Prospectus or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at that subsequent time, not misleading, the Company
and the Operating Partnership will promptly notify the Representatives and will promptly amend
or supplement, at their own expense, such Issuer Free Writing Prospectus to eliminate or correct
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such conflict, untrue statement or omission.
(k) Final Term Sheet. The Operating Partnership and the Company will prepare a final
term sheet, in a form approved by the Company, the Operating Partnership and Representatives
and set forth in Schedule C hereto, and will file such term sheet pursuant to Rule 433(d) within the
time required by such rule (the “Final Term Sheet”). The Operating Partnership and the Company
acknowledge that the Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this
Agreement.
(l) Absence of Manipulation. Except as contemplated herein or in the General
Disclosure Package and the Prospectus, each of the Company and the Operating Partnership will
not take, directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of the Securities.
(m) Qualification and Taxation as a REIT. The Company will use its reasonable best
efforts to meet the requirements for qualification and taxation as a REIT under the Code for its
taxable year ending December 31, 2016, and the Company will use its reasonable best efforts to
continue to qualify for taxation as a REIT under the Code and will not take any action to revoke
or otherwise terminate the Company’s REIT election, unless the Company’s board of trustees
determines in good faith that it is no longer in the best interests of the Company to be so qualified.
(n) Xxxxxxxx-Xxxxx. The Company and the Operating Partnership will comply in all
material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act that are in effect.
(o) Notification of Material Events. The Company and the Operating Partnership,
during the period when the Prospectus is (or but for the exemption in Rule 172 would be) required
to be delivered under the 1933 Act or the 1934 Act, shall notify the Representatives of the
occurrence of any material events respecting their activities, affairs or condition, financial or
otherwise, if, but only if, as a result of any such event it is necessary, in the opinion of counsel, to
amend or supplement the Prospectus in order to make the Prospectus not misleading in the light
of the circumstances existing at the time it is (or but for the exemption in Rule 172 would be)
delivered to a purchaser, and the Company and the Operating Partnership will forthwith supply
such information as shall be necessary in the opinion of counsel to the Company and the
Underwriters for the Company and the Operating Partnership to prepare any necessary amendment
or supplement to the Prospectus so that, as so amended or supplemented, the Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact necessary in order to
33
make the statements therein, in the light of the circumstances existing at the time it is (or but for
the exemption in Rule 172 would be) delivered to a purchaser, not misleading.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Operating Partnership, jointly and severally, will
pay or cause to be paid all expenses incident to the performance of their obligations under this
Agreement, including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus,
each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements
thereto and any costs associated with electronic delivery of any of the foregoing by the
Underwriters to investors, (iii) the preparation, issuance and delivery of the Securities to the
Underwriters, including any transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the
Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the
fees and expenses of the Trustee and its counsel, (vii) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing
of the Securities, including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with the
road show presentations, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and one half of the cost of aircraft and other transportation
chartered in connection with the road show, (viii) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA
of the terms of the sale of the Securities, and not to exceed $15,000, (ix) the costs and expenses
(including, without limitation, any damages or other amounts payable in connection with legal or
contractual liability) associated with the reforming of any contracts for sale of the Securities made
by the Underwriters caused by a breach of the representation contained in the third sentence of
Section 1(a)(ii) and (x) the fees and disbursements of the Underwriters’ counsel to the extent that
the total of such fees and disbursements exceeds $125,000. Except as provided in this Section 4,
Section 6 and Section 7, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
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(b) Termination of Agreement. If this Agreement is terminated by the Representatives
in accordance with the provisions of Section 5, Section 9(a)(i) or (iii) or Section 10 hereof, the
Company and the Operating Partnership shall reimburse the Underwriters (or, in the case of a
termination in accordance with Section 10, solely the non-defaulting Underwriters) for all of their
accountable out-of-pocket expenses, including the reasonable fees and disbursements of counsel
for the Underwriters incurred by them in connection with the offering of the Securities.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the representations and warranties
of the Company and the Operating Partnership contained herein on the date hereof and at the
Closing Time or in certificates of any officer of the Company delivered pursuant to the provisions
hereof, to the performance by the Company and the Operating Partnership of their respective
covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has become
effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order
preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued
and no proceedings for any of those purposes have been instituted or are pending or, to the
Company’s or the Operating Partnership’s knowledge, contemplated; and the Company and the
Operating Partnership have complied with each request (if any) from the Commission for
additional information.
(b) Opinion of Counsel for the Company and the Operating Partnership. At the
Closing Time, the Representatives shall have received the favorable opinion, dated the Closing
Time, of Xxxxx & XxXxxxxx LLP, counsel for the Company and the Operating Partnership, in
form and substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters.
(c) Opinion of Tax Counsel for Company and the Operating Partnership. At the
Closing Time, the Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxx & XxXxxxxx LLP, tax counsel for the Company and the Operating
Partnership, in form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters.
(d) Opinion of Maryland Counsel for Company. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the Closing Time, of
00
Xxxxxxx XXX, Xxxxxxxx counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters.
(e) Opinion of Counsel for Underwriters. At the Closing Time, the Representatives
shall have received the favorable opinion, dated the Closing Time, of Xxxxx Day, counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters with respect to such matters as the Underwriters may reasonably request.
(f) Officers’ Certificate. At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the Registration Statement,
the General Disclosure Package or the Prospectus, any Material Adverse Effect, and the
Representatives shall have received a certificate of the principal executive officer of the Company,
on behalf of the Company and, in the Company’s capacity as general partner, the Operating
Partnership, and of the principal financial officer of the Company, on behalf of the Company and,
in the Company’s capacity as general partner, the Operating Partnership, dated the Closing Time,
to the effect that (i) there has been no such Material Adverse Effect, (ii) the representations and
warranties of the Company and the Operating Partnership in this Agreement are true and correct
with the same force and effect as though expressly made at and as of the Closing Time, (iii) each
of the Company and the Operating Partnership has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement under the 1933 Act has been
issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus
has been issued and no proceedings for any of those purposes have been instituted or are pending
or, to their knowledge, contemplated.
(g) Financial Officer’s Certificate. On the date hereof and at the Closing Time, the
Company shall have furnished to the Representatives a certificate, dated the date hereof and the
date of the Closing Time, respectively, of an officer of the Company, with respect to certain
financial data contained in or incorporated by reference in each of the General Disclosure Package
and the Prospectus, in form and substance reasonably satisfactory to the Representatives.
(h) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter, dated such date, in form
and substance satisfactory to the Representatives, together with signed or reproduced copies of
such letter for each of the other Underwriters containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
36
statements and certain financial information contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, the Representatives shall have
received from Ernst & Young LLP a letter, dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section,
except that the specified date referred to shall be a date not more than three business days prior to
the Closing Time.
(j) Indenture. The Operating Partnership, the Company and the Trustee shall have
entered into the Indenture.
(k) Notes; Guarantee. The Operating Partnership shall have duly executed the Notes,
and the Company shall have duly executed the Guarantee of the Notes, in each case in the form
required pursuant to the Indenture.
(l) DTC. Prior to the Closing Time, the Operating Partnership and the Trustee shall
have executed and delivered the Letter of Representations to DTC and at the Closing Time, the
Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(m) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the
execution and delivery of this Agreement and prior to the Closing Time, (i) no downgrading in, or
withdrawal of, the rating accorded the Securities or any other debt securities issued or guaranteed
by the Company, the Operating Partnership or any of their respective subsidiaries by any
“nationally recognized statistical rating organization”, as such term is defined under
Section 3(a)(62) under the 1934 Act, shall have occurred and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its outlook with respect
to, its rating of the Securities or of any other debt securities issued or guaranteed by the Company,
the Operating Partnership or any of their respective subsidiaries (other than an announcement with
positive implications of a possible upgrading).
(n) Additional Documents. At the Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings taken by the
Company and the Operating Partnership in connection with the issuance and sale of the Securities
37
as herein contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Time and such
termination shall be without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 4, 6, 7, 8, 14 and 15 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Operating Partnership
agree, jointly and severally, to indemnify and hold harmless each Underwriter, its affiliates (as
such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents
and each person, if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement (or any amendment thereto),
including any information deemed to be a part thereof pursuant to Rule 430B, or the
omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included (A) in any preliminary
prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto), or (B) in any materials or
information provided to investors by, or with the approval of, the Company in connection
with the marketing of the offering of the Securities (“Marketing Materials”), including any
roadshow or investor presentations made to investors by the Company (whether in person
or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer
Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any
38
litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees
and disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in the Registration Statement (or any amendment thereto), including
any information deemed to be a part thereof pursuant to Rule 430B, the General Disclosure
Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with the Underwriter Information.
Insofar as this indemnity agreement may permit indemnification for liabilities under the
1933 Act of any person who is a partner of an Underwriter or who controls an underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and who, at the date of
this Agreement, is a trustee or officer of the Company or controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, such indemnity agreement is subject
to the undertaking of the Company in the Registration Statement under Item 17.
(b) Indemnification of Company, the Operating Partnership, Trustees and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Company, the Operating
Partnership, the Company’s trustees, each of the Company’s officers who signed the Registration
Statement, and each person, if any, who controls the Company or the Operating Partnership within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto),
including any information deemed to be a part thereof pursuant to Rule 430B, or any preliminary
prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus
39
(or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter
Information.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced (through the forfeiture of substantive rights and defenses) as a result thereof
and in any event shall not relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. If it so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume
the defense of such action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld), unless such
indemnified parties reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those available to such
indemnifying party and delivers prior written notice thereof to the indemnifying parties. If an
indemnifying party assumes the defense of such action, the indemnifying party shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection
with such action other than the reasonable costs of investigation unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the contrary; (ii) the indemnifying party
has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified
party; (iii) the indemnified party shall have reasonably concluded that there may be legal defenses
available to it 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
indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. In no
event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in
addition to any 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, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of
40
which indemnification or contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the Operating Partnership,
on the one hand, and the Underwriters, on the other hand, from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the Operating Partnership, on
the one hand, and of the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or expenses, 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 hand, in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Operating Partnership, on the one hand, and the total
41
underwriting discount received by the Underwriters, on the other hand, in each case as set forth on
the cover of the Prospectus, bear to the aggregate public offering price of the Securities as set forth
on the cover of the Prospectus.
The relative fault of the Company and the Operating Partnership, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company and the Operating Partnership
or by the Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by
an indemnified party and referred to above in this Section 7 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company or the Operating Partnership within the
42
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or the Operating Partnership. The Underwriters’ respective
obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate
principal amount of the Securities set forth opposite their respective names in Schedule A hereto
and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company and the Operating Partnership submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Company or the Operating Partnership and (ii)
delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the
Representatives, since the time of execution of this Agreement or since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or the
Prospectus, any Material Adverse Effect or (ii) if there has occurred any material adverse change
in the financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange, or (iv) if trading
generally on the NYSE MKT LLC or the New York Stock Exchange or in the Nasdaq Global
Market has been suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said exchanges or by
order of the Commission, FINRA or any other governmental authority, or (v) a material disruption
has occurred in commercial banking or securities settlement or clearance services in the United
States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such
43
termination shall be without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 4, 6, 7, 8, 14 and 15 shall survive such termination
and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities which it or they are obligated
to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representatives shall not have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of Securities to be purchased on such date, each of the non-
defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Securities to be purchased on such date, this
Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either (i) the Representatives or (ii) the Company or the Operating Partnership shall have the right
to postpone Closing Time for a period not exceeding seven days in order to effect any required
changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any
other documents or arrangements. As used herein, the term “Underwriter” includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to: JPM at 000 Xxxxxxx
Xxx., Xxx Xxxx, Xxx Xxxx, 00000, Attention: Investment Grade Syndicate Desk (facsimile: (000)
000-0000); Credit Agricole at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
44
Attention: Fixed Income Syndicate (facsimile: (000) 000-0000); and Jefferies at 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Grade Syndicate Desk
(facsimile: (000) 000-0000), with a copy to (which shall not constitute notice) Xxxxx Day, North
Point, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx (facsimile:
(000) 000-0000); notices to the Company and the Operating Partnership shall be directed to it at
Physicians Realty Trust, 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, attention
of Xxxx Xxxxxx (facsimile: (000) 000-0000) with a copy (which shall not constitute notice) to
Xxxxx & XxXxxxxx LLP, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000, attention
of Xxxxxxxxxxx X. Xxxxxxx (facsimile: (000) 000-0000).
SECTION 12. No Advisory or Fiduciary Relationship. Each of the Operating
Partnership and the Company acknowledges and agrees that (a) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the public offering price of
the Securities and any related discounts and commissions, is an arm’s-length commercial
transaction between the Operating Partnership and the Company, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with the offering of the Securities and the
process leading thereto, each Underwriter is and has been acting solely as a principal and is not
the agent or fiduciary of the Operating Partnership, the Company or any of their respective
subsidiaries, or their respective stockholders, unitholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of
the Operating Partnership or the Company with respect to the offering of the Securities or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Operating Partnership, the Company or any of their respective subsidiaries on other
matters) and no Underwriter has any obligation to the Operating Partnership or the Company with
respect to the offering of the Securities except the obligations expressly set forth in this Agreement,
(d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Operating Partnership and the Company, and (e)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering of the Securities and the Operating Partnership and the Company have consulted their
own business, legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and the Operating Partnership and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed
to give any person, firm or corporation, other than the Underwriters, the Company and the
Operating Partnership and their respective successors and the controlling persons and officers and
45
trustees referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of the Underwriters, the Company and the Operating Partnership and their
respective successors, and said controlling persons and officers and trustees and their heirs and
legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Trial by Jury. The Company (on its behalf and, to the extent
permitted by applicable law, on behalf of its shareholders and affiliates), the Operating Partnership
and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF,
THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 16. TIME. TIME SHALL BE OF THE ESSENCE OF THIS
AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 18. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
[Signature Page to Underwriting Agreement.]
If the foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters, the Company and the
Operating Partnership in accordance with its terms.
Very truly yours,
PHYSICIANS REALTY TRUST
By /s/ Xxxx X. Xxxxxx ____________________
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
PHYSICIANS REALTY L.P.
By: Physicians Realty Trust, its general partner
By /s/ Xxxx X. Xxxxxx ____________________
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
[Signature Page to Underwriting Agreement.]
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXX SECURITIES LLC
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Director
CREDIT AGRICOLE SECURITIES (USA) INC.
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Head of DCM Origination, Americas
XXXXXXXXX LLC
By /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Managing Director
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
A-1
Schedule A
Name of Underwriter
Principal Amount of
Notes
X.X. Xxxxxx Securities LLC $120,000,000
Credit Agricole Securities (USA) Inc. 100,000,000
Xxxxxxxxx LLC 100,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 12,000,000
BMO Capital Markets Corp. 12,000,000
RBC Capital Markets, LLC 12,000,000
KeyBanc Capital Markets Inc. 11,000,000
Xxxxxx Xxxxxxx & Co. LLC 11,000,000
Xxxxxx X. Xxxxxxx & Company, Inc. 11,000,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 11,000,000
Total ........................................................................................ $400,000,000
B-1
Schedule B
1. Final Term Sheet
C-1
Schedule C
Physicians Realty L.P.
Fully and unconditionally guaranteed by
Physicians Realty Trust
$400,000,000 4.300% Senior Notes due 2027
Issuer: Physicians Realty L.P. (the “Operating Partnership”)
Guarantor: Physicians Realty Trust
Aggregate Principal Amount: $400,000,000
Expected Ratings* (Xxxxx’x/S&P): Baa3/BBB-
Trade Date: Xxxxx 0, 0000
Xxxxxxxxxx Date: March 7, 2017 (T+3)
Final Maturity Date: March 15, 2027
Public Offering Price: 99.677%
Yield to Maturity: 4.340%
Coupon: 4.300%
Benchmark Treasury: UST 2.250% due February 15, 2027
Benchmark Treasury Price / Yield: 97-28+ / 2.490%
Spread to Benchmark Treasury: T+185 bps
Interest Payment Dates: March 15 and September 15 of each year, commencing September 15,
2017
Record Dates: March 1 and September 1 of each year
CUSIP / ISIN: 71951Q AA0 / US71951QAA04
Optional Redemption:
The Operating Partnership may, at its option, redeem the notes, in whole
at any time or in part from time to time, in each case prior to December
15, 2026 (three months prior to the stated maturity date of the notes), for
cash, at a redemption price equal to the greater of (1) 100% of the
principal amount of the notes to be redeemed and (2) the sum of the
present values of the remaining scheduled payments of principal of, and
interest on the notes to be redeemed, exclusive of unpaid interest, if any,
accrued to, but not including, the redemption date, that would be due after
the related redemption date but for such redemption, discounted to such
C-2
redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the applicable Treasury Rate plus
30 basis points, plus, in each case unpaid interest, if any, accrued to, but
not including, such redemption date.
At any time on or after December 15, 2026 (three months prior to the
stated maturity date of the notes), the Operating Partnership may, at its
option, redeem the notes, in whole at any time or in part from time to
time, at a redemption price equal to 100% of the principal amount of the
notes to be redeemed plus unpaid interest, if any, accrued to, but not
including, the related redemption date.
Joint Book-Running Managers:
X.X. Xxxxxx Securities LLC
Credit Agricole Securities (USA) Inc.
Xxxxxxxxx LLC
Co-Managers:
BMO Capital Markets Corp.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
RBC Capital Markets, LLC
KeyBanc Capital Markets Inc.
Xxxxxx Xxxxxxx & Co. LLC
Xxxxxx X. Xxxxxxx & Company, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
* Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time.
Physicians Realty Trust and the Operating Partnership have filed a registration statement (including a
prospectus) with the Securities and Exchange Commission (the “SEC”) for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement and
other documents Physicians Realty Trust and the Operating Partnership have filed with the SEC, including
the prospectus supplement, for more complete information about Physicians Realty Trust, the Operating
Partnership and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site
at xxx.xxx.xxx. Alternatively, Physicians Realty Trust, the Operating Partnership, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus and the accompanying prospectus
supplement if you request it by calling X.X. Xxxxxx Securities LLC collect at (000) 000-0000, Credit Agricole
Securities (USA) Inc. at (000) 000-0000 or Xxxxxxxxx LLC at (000) 000-0000.
