CAMDEN PROPERTY TRUST Common Shares of Beneficial Interest (par value $.01 per share) AMENDED AND RESTATED DISTRIBUTION AGENCY AGREEMENT
Exhibit 1.1
Execution Copy
$250,000,000
Common Shares of Beneficial Interest
(par value $.01 per share)
(par value $.01 per share)
AMENDED AND RESTATED DISTRIBUTION AGENCY AGREEMENT
May 10, 2010
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Camden Property Trust, a Texas real estate investment trust (“Company”),
agrees with Deutsche Bank Securities Inc. (the “Manager”) to issue and sell from time to time
through the Manager, as sales agent and/or principal, common shares of beneficial interest of the
Company, par value $.01 per share (the “Common Shares”), having an aggregate offering price of up
to $250,000,000 (the “Maximum Amount”) on the terms set forth herein. The Common Shares to be
issued and sold hereunder shall be referred to as the “Shares.”
This Agreement amends and restates in its entirety that certain Distribution Agency Agreement,
dated March 16, 2010, by and between the Company and the Manager (the “Original Distribution
Agreement”), which contemplated the issuance and sale of Common Shares having an aggregate offering
price of up to the Maximum Amount through or to the Manager pursuant to the Original Agreement, or
through or to Credit Suisse Securities (USA) LLC (“Credit Suisse”) and Xxxxx Fargo Securities, LLC
(“Xxxxx Fargo”) pursuant to Distribution Agency Agreements, dated as of March 16, 2010 (the
"Original Alternative Distribution Agreements”), of which Common Shares having an aggregate
offering price of $54,963,534 have been issued and sold pursuant to the Original Distribution
Agreement and Original Alternative Distribution Agreements. As of the date hereof, Common Shares
having an aggregate offering price of up to $195,036,466 remain authorized for issuance and sale
pursuant to the terms of this Agreement and the Alternative Distribution Agreements (as defined
below).
The Company has also entered into Amended and Restated Distribution Agency Agreements, dated
as of even date herewith (the “Amended and Restated Alternative Distribution Agreements”), with
each of Credit Suisse and Xxxxx Fargo, and a Distribution Agency Agreement, dated as of even date
herewith (the “Xxxxxx Xxxxxxx Alternative Distribution Agreement,” and collectively with the
Amended and Restated Alternative Distribution Agreements, the “Alternative Distribution
Agreements”), with Xxxxxx Xxxxxxx & Co. Incorporated (together with Credit Suisse and Xxxxx Fargo,
the “Alternative Managers”). The aggregate offering price of the Shares that may be sold pursuant
to this Agreement, any Terms Agreement (as defined below) and the Alternative Distribution
Agreements shall not exceed the Maximum Amount, including the Common Shares having an aggregate
offering price of $54,963,534 issued and sold prior to the date hereof pursuant to the Original
Distribution Agreement and Original Alternative Distribution Agreements.
The Manager and the Company each agrees that whenever the Company determines to sell the
Shares directly to the Manager, as principal, it will enter into a separate agreement (a “Terms
Agreement”) substantially in the form of Schedule A hereto.
2. Representations and Warranties of the Company. The Company represents and warrants to, and
agrees with, the Manager that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-3 (No. 333-159372),
including a related prospectus or prospectuses, covering the registration of the Shares
under the Act, which has become effective. “Registration Statement” at any particular time
means such registration statement in the form then filed with the Commission, including any
amendment thereto, any document incorporated by reference therein and all 430B Information
and all 430C Information with respect to such registration statement, that in any case has
not been superseded or modified. “Registration Statement” without reference to a time means
the Registration Statement as of the Effective Time. For purposes of this definition, 430B
Information shall be considered to be included in the Registration Statement as of the time
specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means the time of each sale of any Shares pursuant to this Agreement.
“Basic Prospectus,” as used herein, means the base prospectus filed as part of each
Registration Statement, together with any amendments or supplements thereto as of the date
of this Agreement.
“Commission” means the Securities and Exchange Commission.
“Effective Time” of the Registration Statement relating to the Shares means each date
and time that the Registration Statement and any post-effective amendment or amendments
thereto became or become effective.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433, relating to the Shares in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records
pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
“Prospectus” means the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“Prospectus Supplement” means the final prospectus supplement, relating to the Shares,
filed by the Company with the Commission pursuant to Rule 424(b) under the Act within the
time period prescribed therein, in the form furnished by the Company to the Manager in
connection with the offering of the Shares.
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“Representation Date” means each date on which (i) the Registration Statement or the
Prospectus shall be amended or supplemented, other than by an amendment or supplement
relating solely to the offering of securities other than the Shares, (ii) the Company shall
file an annual report on Form 10-K or quarterly report on Form 10-Q, (iii) the Company shall
file a report on Form 8-K containing financial statements incorporated by reference into the
Registration Statement and the General Disclosure Package and (iv) at any other time
reasonably requested by the Manager.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002
(“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company Accounting Oversight Board
and, as applicable, the rules of the New York Stock Exchange (the “NYSE”).
“Statutory Prospectus” with reference to any particular time means the prospectus
relating to the Shares that is included in the Registration Statement immediately prior to
that time, including all 430B Information and all 430C Information with respect to the
Registration Statement. For purposes of the foregoing definition, 430B Information shall be
considered to be included in the Statutory Prospectus only as of the actual time that form
of prospectus (including a prospectus supplement) is filed with the Commission pursuant to
Rule 424(b) and not retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Act.
(b) Compliance with Act Requirements. (i) (A) At the time the Registration Statement
initially became effective, (B) at the time of each amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether by post-effective amendment,
incorporated report or form of prospectus), (C) at the Effective Time and (D) on each
Settlement Date (as defined below), the Registration Statement conformed and will conform in
all material respects to the requirements of the Act and the Rules and Regulations and did
not and will not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading and (ii) (A) on its date, (B) at the time of filing, the Prospectus pursuant to
Rule 424(b) and (C) at each Applicable Time and (D) on each Settlement Date, the Prospectus
will conform in all material respects to the requirements of the Act and the Rules and
Regulations and will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein
not misleading. The preceding sentence does not apply to statements in or omissions from
any such document based upon written information furnished to the Company by the Manager
specifically for use therein, it being understood and agreed that the only such information
is that described as such in Section 6(b) hereof.
(c) Automatic Shelf Registration Statement.
(i) Well-Known Seasoned Issuer Status. (A) At the time of initial 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 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act or form of prospectus), and (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any
offer relating to the Shares in reliance on the exemption of Rule 163, the Company was a
“well-known seasoned issuer” as defined in Rule 405, including not having been an
“ineligible issuer” as defined in Rule 405.
(ii) Effectiveness of Automatic Shelf Registration Statement. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405, that
initially became effective within three years of the date hereof.
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(iii) Eligibility to Use Automatic Shelf Registration Form. The Company has not
received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of
the automatic shelf registration statement form. If at any time the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be
eligible to use the automatic shelf registration statement form, the Company will
promptly notify the Manager. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the registration statement that was the subject of the Rule 401(g)(2)
notice or for which the Company has otherwise become ineligible. References herein to
the Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(iv) Filing Fees. The Company has paid or shall pay the required Commission
filing fees relating to the Shares within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(d) Ineligible Issuer Status. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) at the date of hereof,
the Company was not and is not an “ineligible issuer,” as defined in Rule 405, including
(x) the Company or any of the Subsidiaries (as defined below) in the preceding three years
not having been convicted of a felony or misdemeanor or having been made the subject of a
judicial or administrative decree or order as described in Rule 405 and (y) the Company in
the preceding three years not having been the subject of a bankruptcy petition or insolvency
or similar proceeding, not having had a registration statement be the subject of a
proceeding under Section 8 of the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the Shares, all as described in
Rule 405.
(e) General Disclosure Package. As of each Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to each Applicable Time, the
Prospectus and the other information, if any, stated in Schedule B to this Agreement to be
included in the General Disclosure Package, all considered together (collectively, the
“General Disclosure Package”), nor (ii) any individual Limited Use Issuer Free Writing
Prospectus, when considered together with the General Disclosure Package, will include any
untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements in or omissions from
any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by the Manager specifically for
use therein, it being understood and agreed that the only such information furnished by the
Manager consists of the information described as such in Section 6(b) hereof.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Shares, or until any earlier date that the Company notified or notifies the Manager
as described in the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information then contained in the
Registration Statement. 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 then contained in
the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if
republished immediately following such event or development, 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 under
which they were made, not misleading, (i) the Company has promptly notified or will promptly
notify the Manager and (ii) the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(g) Formation; Good Standing of the Company and Subsidiaries. The Company has been
duly formed and is validly existing as a real estate investment trust
with transferable shares of beneficial interest under the laws of the State of Texas, with power and authority
to own or lease its properties and conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus,
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and is qualified for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the Company and its
Subsidiaries taken as a whole (a “Material Adverse Effect”); except for investments in
securities as described in the Registration Statement, the General Disclosure Package and
the Prospectus or for investments in securities that are not, individually or in the
aggregate, material to the Company and its Subsidiaries taken as a whole, the Company has no
equity or other interest in, or rights to acquire, an equity or other interest in any
corporation, partnership, trust, joint venture or other entity; the subsidiary entities of
the Company identified on Schedule C hereto (the “Subsidiaries”) are all of the Company’s
Subsidiaries, have full power and authority to conduct their business as described in the
Registration Statement, the General Disclosure Package and the Prospectus, have been duly
organized and are validly existing as corporations, limited partnerships or limited
liability companies, as the case may be, in good standing under the laws of their states of
organization, and have been duly qualified as foreign corporations, limited partnerships or
limited liability companies, as the case may be, for the transaction of business and are in
good standing under the laws of each other jurisdiction in which they own or lease
properties, or conduct any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not have a Material Adverse Effect;
except for investments in securities as described in the Registration Statement, the General
Disclosure Package and the Prospectus or for investments in securities that are not,
individually or in the aggregate, material to the Company and its Subsidiaries taken as a
whole, or ownership of interests of lower tier Subsidiaries, the Subsidiaries have no equity
or other interest in, or rights to acquire, an equity or other interest in any corporation,
partnership, trust, joint venture or other entity; the Subsidiaries of the Company that are
“significant subsidiaries” (as defined in Rule 1-02(w) of Regulation S-X) (the “Significant
Subsidiaries”) are identified on Schedule C hereto and complete and correct copies of the
charter documents and the by-laws, if any, of the Significant Subsidiaries and all
amendments thereto have been previously made available or delivered to the Manager; all of
the issued and outstanding capital stock of each Subsidiary that is a corporation or similar
entity has been duly authorized and validly issued, is fully paid and non-assessable and,
except as otherwise indicated on Schedule C hereto, is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or restriction.
(h) Authorization and Description of Shares. The Shares have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement or any Terms Agreement against payment of the consideration on
each Settlement Date, will be validly issued, fully paid and non-assessable. The Shares
conform in all material respects to the statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the Prospectus. No holder of the
Shares will be subject to personal liability by reason of being such a holder. The issuance
of the Shares is not subject to the preemptive or other similar rights of any securityholder
of the Company. The form of certificate used to evidence the Shares will be in
substantially the form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement, and such form complies with all applicable statutory
requirements, requirements of the Company’s Declaration of Trust and By-Laws and the
requirements of the NYSE.
(i) No Finder’s Fee. Except as disclosed in the Registration Statement, the General
Disclosure Package and Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid claim against the Company
or the Manager for a brokerage commission, finder’s fee or other like payment in connection
with this offering.
(j) Registration Rights. No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement except for those that have
been effectively waived or are inapplicable to the offering hereby.
(k) Absence of Defaults or Conflicts; Absence of Further Requirements. Neither the
Company nor any of the Subsidiaries is, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under, its respective Declaration of Trust,
Articles of Incorporation, By-Laws, limited partnership or limited liability company
agreement or any indenture, mortgage, deed of trust, loan agreement or other
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agreement or other instrument or obligation to which the Company or any Subsidiary is a
party or by which they or any of their properties are bound, except for violations and
defaults which individually and in the aggregate are not material to the Company and its
subsidiaries taken as a whole; the issue and sale of the Shares and the performance by the
Company of all of the provisions of its obligations under this Agreement or any Terms
Agreement and the consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or to which any of the property or assets of the Company
or any Subsidiary is subject, nor will any such action result in any violation of the
provisions of the Declaration of Trust or the By-Laws of the Company or any applicable law
or statute or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this Agreement or any Terms
Agreement, except such consents, approvals, authorizations, registrations or qualifications
as have been obtained under the Act and as may be required under state securities or Blue
Sky laws in connection sales of the Shares.
(l) Title to Property. The Company and the Subsidiaries have indefeasible title to all
of the real properties and assets reflected in the financial statements (or as described in
the Registration Statement, the General Disclosure Package and the Prospectus) described
herein, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration Statement, the
General Disclosure Package and the Prospectus) or which are not material in amount and which
do not materially affect the value of such property or materially interfere with the use
made or proposed to be made of such property by the Company or any of the Subsidiaries; the
Company and the Subsidiaries occupy their leased properties under valid and binding leases
conforming to the description thereof set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(m) Authorization of Agreement. The Company has full power and authority to enter into
this Agreement and any Terms Agreement and to issue, offer and sell the Shares as
contemplated by this Agreement or any Terms Agreement; this Agreement has been, and any
Terms Agreement will be, duly authorized, executed and delivered by the Company; this
Agreement constitutes, and any Terms Agreement will constitute, the valid and legally
binding obligation of the Company enforceable in accordance with their respective terms,
except that the enforceability thereof may be limited by or subject to (i) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or
hereafter existing which affect the rights and remedies of creditors generally and (ii)
equitable principles of general applicability, and except as rights to indemnity and
contribution hereunder may be limited by applicable law.
(n) Possession of Licenses and Permits. The Company and the Subsidiaries hold all
material licenses, certificates and permits from governmental authorities which are
necessary to the conduct of their business.
(o) Environmental Laws. With respect to the properties of the Company described in the
Registration Statement, the General Disclosure Package and the Prospectus or reflected in
the Company’s consolidated financial statements included or incorporated by reference
therein (the “Properties”), the Company and its Subsidiaries (I) are in compliance with any
and all applicable Federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (II) have obtained all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (III) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with Environmental Laws,
failure to obtain required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals are otherwise disclosed in
the Registration Statement, the General Disclosure Package or the Prospectus or would not,
singly or in the aggregate, have a Material Adverse Effect; and
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(i) none of the Company or the Subsidiaries has at any time, and, to the knowledge
of the Company, no other party has at any time, handled, buried, stored, retained,
refined, transported, processed, manufactured, generated, produced, spilled, allowed to
seep, leak, escape or xxxxx, or be pumped, poured, emitted, emptied, discharged,
injected, dumped, transferred or otherwise disposed of or dealt with, Hazardous
Materials (as hereinafter defined) on, to or from the Properties, which would require
remediation under applicable Environmental Laws, other than any such action taken in
compliance with all applicable Environmental Laws or by tenants in connection with the
ordinary use of residential properties owned by the Company or the Subsidiaries; the
Company does not intend to use the Properties or any subsequently acquired properties
described in the Registration Statement, the General Disclosure Package or the
Prospectus for the purpose of handling, burying, storing, retaining, refining,
transporting, processing, manufacturing, generating, producing, spilling, seeping,
leaking, escaping, leaching, pumping, pouring, emitting, emptying, discharging,
injecting, dumping, transferring or otherwise disposing of or dealing with Hazardous
Materials other than in compliance with all applicable Environmental Laws;
(ii) the Company does not know of any seepage, leak, escape, leaching, discharge,
injection, release, emission, spill, pumping, pouring, emptying or dumping of Hazardous
Materials into waters on or adjacent to the Properties or onto lands from which such
hazardous or toxic waste of substances might seep, flow or drain into such waters, which
would require remediation under applicable Environmental Laws; and
(iii) neither the Company nor any of the Subsidiaries has received notice of, or
has knowledge of any occurrence or circumstance which, with notice or passage of time or
both, would give rise to, any claim under or pursuant to any Environmental Law
pertaining to Hazardous Materials or toxic waste or substances on or originating from
the Properties or arising out of the conduct of any such party, including, without
limitation, pursuant to any Environmental Law; as used herein, “Hazardous Materials”
shall include, without limitation, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material as defined by any Federal, state or local
environmental law, ordinance, rule, or regulation including, without limitation,
Environmental Laws, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.)
(“CERCLA”), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section
1801, et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Section 9601, et seq.), and in the regulations adopted and
publications promulgated pursuant to each of the foregoing or by any Federal, state or
local governmental authority having or claiming jurisdiction over the Properties as
described in the Registration Statement, the General Disclosure Package and the
Prospectus.
(p) Actively-Traded Security. The Common Shares satisfy the definition of an
“actively-traded security” exempted from the requirements of Rule 101 of Regulation M under
the Exchange Act by subsection 101(c)(1) of such rule.
(q) Internal Accounting Controls. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
accounting principles generally accepted in the United States of America (“GAAP”) and to
maintain accountability for assets; (iii) access to financial and corporate books and
records is permitted only in accordance with management’s general or specific authorization;
(iv) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; and (v) the
principal executive officers (or their equivalents) and principal financial officers (or
their equivalents) of the Company have made all certifications required by Sections 302 and
906 of Xxxxxxxx-Xxxxx and any related rules and regulations promulgated by the Commission,
and the statements contained in any such certification are complete and correct, subject to
the materiality qualifications set forth in such certification.
(r) Disclosure Controls. The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) in
accordance with
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the rules and regulations under Xxxxxxxx-Xxxxx, the Act and the Exchange Act. Such
disclosure controls and procedures are designed to ensure that material information relating
to the Company and its consolidated Subsidiaries is made known to the Company’s Chief
Executive Officer and its Chief Financial Officer by others within those entities, and such
disclosure controls and procedures are effective to perform the functions for which they
were established; the Company’s auditors and the Audit Committee of the Board of Trust
Managers have been advised of: (i) any significant deficiencies in the design or operation
of internal controls over financial reporting which are reasonably likely to adversely
affect the Company’s ability to record, process, summarize, and report financial data; and
(ii) any fraud, whether or not material, that involves management or other employees of the
Company who have a significant role in the Company’s internal controls over financial
reporting; any fraud that is material or known to the Company that involves persons other
than management or employees of the Company who have a role in the Company’s internal
controls over financial reporting.
(s) Xxxxxxxx-Xxxxx Compliance. The Company and the Subsidiaries and any of the
officers, trust managers and directors of the Company and any of the Subsidiaries, in their
capacities as such, are in compliance in all material respects with the provisions of
Xxxxxxxx-Xxxxx and the rules and regulations promulgated thereunder.
(t) Litigation. Other than as set forth or contemplated in the Registration Statement,
the General Disclosure Package and the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to which the Company or
any Subsidiary is or may be a party or to which any property of the Company or any
Subsidiary is or may be the subject which, if determined adversely to the Company or any
Subsidiary, could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect and, to the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and there are no contracts
or other documents of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement, the General Disclosure
Package and the Prospectus which are not filed or described as required.
(u) Financial Statements. The financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus, present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of its operations and
the changes in its cash flows for the periods specified; the foregoing financial statements
have been prepared in conformity with GAAP applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus present fairly the information required to be stated
therein; the selected financial and statistical data and the summary financial information
included or incorporated by reference in the Registration Statement, the General Disclosure
Package or the Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the audited financial statements included or
incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus; no other financial statements (or schedules) of the Company or its
consolidated subsidiaries, any predecessor of the Company or any other entity or business
are required by the Act to be included in the Registration Statement, the General Disclosure
Package or the Prospectus; any historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus present fairly the revenue and those operating
expenses included in such summaries of the properties related thereto for the periods
specified in conformity with GAAP; and pro forma financial statements and other pro forma
financial information of the Company and its subsidiaries and the related notes thereto
included or incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus, if any, 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 bases
described therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate under the circumstances to give effect to the
transactions and circumstances referred to therein.
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(v) No Material Adverse Change in Business. Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the
Prospectus, there has not been any material adverse change, or any development involving a
prospective material adverse change (excluding any development resulting from any event,
circumstance, development, change or effect (i) in general economic or business conditions,
(ii) in financial or securities markets generally or (iii) generally affecting the business
or industry in which the Company operates), in or affecting the general affairs, business,
prospects (excluding any development resulting from any event, circumstance, development,
change or effect (i) in general economic or business conditions, (ii) in financial or
securities markets generally or (iii) generally affecting the business or industry in which
the Company operates), management, properties, financial position, shareholders’ equity or
results of operations of the Company and its Subsidiaries taken as a whole; and except as
set forth or contemplated in the Registration Statement, the General Disclosure Package and
the Prospectus, neither the Company nor any of its Subsidiaries has incurred any liabilities
or obligations, direct or contingent, or entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company and its Subsidiaries as a
whole.
(w) Investment Company Act. The Company has never been, is not now, and immediately
after the sale of any Shares under this Agreement or any Terms Agreement will not be, an
“investment company” within the meaning of the Investment Company Act of 1940, as amended;
the Company is organized, and has operated, operates and will continue to operate in a
manner so as to qualify as a “real estate investment trust” (a “REIT”) under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended, and the Company’s present and
contemplated operations, assets and income continue to meet such requirements.
(x) Tax Returns. The Company and the Subsidiaries have filed all Federal, state and
foreign income tax returns which have been required to be filed and have paid all taxes
indicated by said returns and all assessments received by it to the extent that such taxes
have become due and are not being contested in good faith.
(y) Texas Business Organization Code. The Company has complied in all material
respects with all provisions of Title 5, Chapter 200, of the Texas Business Organization
Code.
(z) ERISA. None of the assets of the Company or the Subsidiaries constitutes, nor will
such assets, as of any Applicable Time or any Settlement Date, constitute, “plan assets”
under the Employee Retirement Income Security Act of 1974, as amended.
(aa) Conflicts of Interest. No relationship, direct or indirect, exists between or
among any of the Company or its Subsidiaries, on the one hand, and any trust manager,
officer, shareholder, customer or supplier of the Company or its Subsidiaries, on the other
hand, which is required by the Act or the Exchange Act to be described in the Registration
Statement, the General Disclosure Package and the Prospectus which is not so described or is
not described as required. There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of indebtedness by
the Company to or for the benefit of any of the officers or trust managers of the Company or
any of their respective family members, except as disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus.
(bb) Liens. All liens, charges, encumbrances, claims or restrictions on or affecting
the Properties which are required to be disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus are disclosed therein; to the knowledge of the
Company, (i) no lessee of any portion of any of the Properties is in default under any of
the leases governing such Properties and there is no event which, but for the passage of
time or the giving of notice, or both, would constitute a default under any of such leases,
except such defaults that would not have a Material Adverse Effect; (ii) the intended use
and occupancy of each of the Properties complies with all applicable codes and zoning laws
and regulations, if any, except for such failures to comply which would not individually or
in the aggregate have a Material Adverse Effect; and (iii) there is no pending or, to the
knowledge of the Company, threatened condemnation, zoning change, environmental or other
proceeding or action that will in any material respect
9
affect the size of, use of, improvements on, construction on, or access to the
Properties, except such proceedings or actions that would not have a Material Adverse
Effect.
(cc) Insurance. The Company has, and will maintain, property and casualty insurance in
favor of the Company and the Subsidiaries, as the case may be, with respect to each of the
Properties, in an amount and on such terms as are reasonable and customary for businesses of
the type proposed to be conducted by the Company and the Subsidiaries; the Company has not
received from any insurance company written notice of any material defects or deficiencies
affecting the insurability of any such Properties.
(dd) Money Laundering. The operations of the Company are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(ee) OFAC. Neither the Company nor, to the knowledge of the Company, any trust
manager, officer, agent, employee, affiliate or person acting on behalf of the Company is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the offering contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(ff) Corrupt Practices. Neither the Company nor, to the knowledge of the Company, any
trust manager, officer, agent, employee, affiliate or other person acting on behalf of the
Company or any of its Subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA and the Company and, to the knowledge
of the Company, its affiliates have conducted their businesses in compliance with the FCPA
and have instituted and maintained policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(gg) Proceedings under Section 8 of the Act. The Registration Statement is not the
subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Act, and
the Company is not the subject of a pending proceeding under Section 8A of the Act in
connection with the offering of the Shares.
3. Sale and Delivery of the Shares. On the basis of the representations, warranties and
agreements and subject to the terms and conditions set forth herein, the Company and the Manager
agree that the Company may from time to time seek to sell Shares through the Manager, acting as
sales agent, or directly to the Manager acting as principal, as follows:
(a) The Company may submit to the Manager its orders (including any price, time or size
limits or other customary parameters and conditions) to sell Shares on any Trading Day (as
defined herein) through placement instructions substantially in the form attached hereto as
Schedule D. Orders will be submitted by the Company and received by the Manager, initially
by the authorized officers and persons listed in Schedule E, and any substitute or
additional officers and persons as designated by the Company and notified in writing to the
Manager. The Company shall have the right to amend at any time and from time to time any
such prior order provided the Manager is given reasonable notice of such amendment. As used
herein, “Trading Day” shall mean any trading day on the NYSE.
10
(b) Subject to the terms and conditions hereof, the Manager shall use its reasonable
efforts to execute any Company order submitted to it hereunder to sell Shares with respect
to which the Manager is acting as sales agent. The Company acknowledges and agrees that
(A) there can be no assurance that the Manager will be successful in selling the Shares,
(B) the Manager will incur no liability or obligation to the Company or any other person or
entity if it does not sell Shares for any reason other than a failure by the Manager to use
its reasonable efforts consistent with its normal trading and sales practices and applicable
law and regulations to sell such Shares as required under this Agreement and (C) the Manager
shall be under no obligation to purchase Shares on a principal basis pursuant to this
Agreement, except as otherwise specifically agreed by the Manager and the Company under a
Terms Agreement.
(c) The Company shall not authorize the issuance and sale of, and the Manager shall not
sell as sales agent, any Share at a price lower than the minimum price therefor designated
from time to time by the Company and notified to the Manager in writing. In addition, the
Company or the Manager may, upon notice to the other party hereto by telephone (confirmed
promptly by email or facsimile), suspend an offering of the Shares with respect to which the
Manager is acting as sales agent; provided, however, that such suspension or termination
shall not affect or impair the parties’ respective obligations with respect to the Shares
sold hereunder prior to the giving of such notice; and provided, further, that (A) any
obligation under Sections 4(k), 4(l), 4(m), 5(a), 5(e), 5(f) and 5(g) and (B) the
notification obligation under Section 4(b), other than during the period in which a
prospectus relating to the Shares is required to be delivered under the Act (whether
physically or through compliance with Rule 172 under the Act or any similar rule) shall be
waived during the period of any such suspension.
(d) The Manager hereby covenants and agrees not to make any sales of the Shares on
behalf of the Company, pursuant to this Agreement, other than (1) by means of ordinary
brokers’ transactions that meet the definition of an “at the market offering” under Rule
415(a)(4) under the Act and (2) such other sales of the Shares on behalf of the Company in
its capacity as agent of the Company as shall be agreed by the Company and the Manager in a
separate terms agreement upon no less than three business days notice to the Manager.
(e) If either party has reason to believe that the exemptive provisions set forth in
Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the
Company or the Shares, it shall promptly notify the other party and sales of Shares under
this Agreement shall be suspended until that or other exemptive provisions have been
satisfied in the judgment of each party.
(f) The compensation to the Manager for sales of Shares on any given day with respect
to which the Manager acts as sales agent under this Agreement shall be at a mutually agreed
rate, not to exceed 2.00% of the gross offering proceeds of the Shares sold pursuant to
Section 3(a) hereof on such day. Any compensation or commission due and payable to the
Manager shall be deducted by the Manager from the gross offering proceeds it receives from
the sale of the Shares pursuant to this Agreement. The Company may sell Shares to the
Manger as principal at a price agreed upon at the relevant Applicable Time.
(g) Settlement for sales of the Shares pursuant to this Agreement will occur on the
third Trading Day (or such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each such day, a “Settlement Date”). On
each Settlement Date, the Shares sold through or to the Manager for settlement on such date
shall be issued and delivered by the Company to the Manager against payment of the gross
proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by
free delivery of the Shares by the Company or its transfer agent to the Manager’s or its
designee’s account (provided the Manager shall have given the Company notice of such
designee prior to the Settlement Date) at The Depository Trust Company through its Deposit
and Withdrawal at Custodian System or by such other means of delivery as may be mutually
agreed upon by the parties hereto which in all cases shall be freely tradable, transferable,
registered shares in good deliverable form, in return for payments in same day funds
delivered to the account designated by the Company. If the Company, or its transfer agent
(if applicable) shall default on its obligation to deliver the Shares on any Settlement
Date, the Company shall (A) hold the Manager harmless against any loss, claim, damage, or
expense (including reasonable legal fees and expenses), as incurred, arising out of or in
connection with such default by the
11
Company and (B) pay the Manager any commission, discount or other compensation to which
it would otherwise be entitled absent such default.
(h) If acting as sales agent hereunder, the Manager shall provide written confirmation
(which may be by facsimile or email) to the Company following the close of trading on the
NYSE each day in which the Shares are sold under this Agreement setting forth (A) the amount
of Shares sold on such day and the gross offering proceeds received from such sale and
(B) the commission payable by the Company to the Manager with respect to such sales.
(i) At each Applicable Time, on each Settlement Date and at each Representation Date,
the Company shall be deemed to have affirmed each representation, warranty, covenant and
other agreement contained in this Agreement. Any obligation of the Manager to use its
reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be
subject to the continuing accuracy of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder and to the continuing
satisfaction of the additional conditions specified in Section 5 of this Agreement.
(j) If the Company wishes to issue and sell the Shares other than as set forth in
Section 3 of this Agreement (each, a “Placement”), it may notify the Manager of the proposed
terms of such Placement. If the Manager, acting as principal, wishes to accept such
proposed terms (which it may decline to do for any reason in its sole discretion) or,
following discussions with the Company, wishes to accept amended terms, the Manager and the
Company will enter into a Terms Agreement setting forth the terms of such Placement.
(k) The terms set forth in a Terms Agreement will not be binding on the Company or the
Manager unless and until the Company and the Manager have each executed such Terms
Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict
between the terms of this Agreement and the terms of a Terms Agreement, the terms of such
Terms Agreement will control.
(l) Each sale of the Shares to the Manager shall be made in accordance with the terms
of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of
such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Shares by the Manager. The
commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set forth. Each
Terms Agreement shall specify the number of the Shares to be purchased by the Manager
pursuant thereto, the price to be paid to the Company for such Shares, any provisions
relating to rights of, and default by, underwriters acting together with the Manager in the
reoffering of the Shares, and the time and date and place of delivery of and payment for
such Shares.
(m) Subject to the limitations set forth herein and as may be mutually agreed upon by
the Company and the Manager, sales pursuant to this Agreement and any Terms Agreement may
not be requested by the Company and need not be made by the Manager except during the period
that begins 24 hours after the filing of a Quarterly Report on Form 10-Q or an Annual Report
on Form 10-K as of and within the period required by the Exchange Act and ends, for all
periods, two weeks before the filing of the immediately succeeding press release or public
announcement containing the Company’s earnings, revenues or other results of operations.
Notwithstanding the foregoing, no sales of Shares shall take place, and the Company shall
not request the sale of any Shares that would be sold, and the Manager shall not be
obligated to sell, during any period in which the Company is, or could be deemed to be, in
possession of material non-public information.
(n) Under no circumstances shall the Company cause or request the offer or sale of any
Shares, if after giving effect to the sale of such Shares, the aggregate offering price of
the Shares sold pursuant to this Agreement would exceed, together with all sales of Shares
under this Agreement and the Alternative Distribution Agreements, the Maximum Amount. Under
no circumstances shall the Company cause or request the offer or sale of any Shares at a
price lower than the minimum price authorized from time to time by the Company and notified
to the Manager in writing.
12
(o) The Company agrees that any offer to sell, any solicitation of an offer to buy or
any sales of Shares shall be effected by or through only one of the Manager or the
Alternative Managers on any single given day, but in no event more than one, and the Company
shall in no event request that the Manager or either Alternative Manager sell Shares on the
same day; provided, however, that (a) the foregoing limitation shall not apply to (i)
exercise of any option, warrant, right or any conversion privilege set forth in the
instrument governing such security or (ii) sales solely to employees or security holders of
the Company or its Subsidiaries, or to a trustee or other person acquiring such securities
for the accounts of such persons, and (b) such limitation shall not apply on any day during
which no sales are made pursuant to this Agreement.
4. Certain Agreements of the Company. The Company agrees with the Manager that:
(a) Filing of Amendments; Response to Commission Requests. The Company will promptly
advise the Manager of any proposal to amend or supplement the Registration Statement or any
Prospectus at any time and will offer the Manager a reasonable opportunity to comment on any
such proposed amendment or supplement; and the Company will also advise the Manager promptly
of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or
its staff for any amendment to the Registration Statement, for any supplement to any
Prospectus or for any additional information with respect thereto, (iii) the institution by
the Commission of any stop order proceedings in respect of the Registration Statement or the
threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares in any
jurisdiction or the institution or threatening of any proceedings for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Shares is required to be delivered under the Act (whether physically or
through compliance with Rule 172 under the Act or any similar rule), any event occurs as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration Statement or
supplement the Prospectus to comply with the Act, the Company will promptly notify the
Manager of such event and promptly notify the Manager to suspend solicitation of purchases
of the Shares and forthwith upon receipt of such notice, the Manager shall suspend its
solicitation of purchases of the Shares and shall cease using the Prospectus; and if the
Company shall decide to amend or supplement the Registration Statement or the Prospectus, it
will promptly advise the Manager by telephone (with confirmation in writing), will promptly
prepare and file with the Commission an amendment or supplement to the Registration
Statement or the Prospectus which will correct such statement or omission or effect such
compliance and will advise the Manager when the Manager is free to resume such solicitation.
Neither the Manager’s consent to, nor the Manager’s delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 5 hereof.
The Company, during the period when a prospectus relating to the Shares is required to be
delivered under the Act (whether physically or through compliance with Rule 172 under the
Act or any similar rule), will file promptly all documents required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and will promptly advise the Manager if the
Company failed to file such reports within the time period prescribed therein.
(c) Rule 158. As soon as practicable, but not later than 16 months, after the date of
this Agreement, the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the date of this Agreement
and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(d) Furnishing of Prospectuses. The Company will furnish to the Manager copies of the
Registration Statement, including all exhibits, and the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such quantities as
the Manager reasonably requests. The Company will pay the expenses of printing and
distributing to the Manager all such documents.
13
(e) Blue Sky Qualifications. The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions as the Manager designates and will
continue such qualifications in effect so long as required for the distribution; provided,
however, that the Company will not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such jurisdiction (except service of
process with respect to the offering and sale of the Shares).
(f) Payment of Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including but not limited to any filing fees and
other expenses incurred in connection with qualification of the Shares under the laws of
such jurisdictions as the Manager designates and the preparation and printing of memoranda
relating thereto (including reasonable fees and disbursements of counsel to the Manager
relating to such qualification), fees and expenses incident to listing the Shares on the
NYSE, fees and expenses in connection with the registration of the Shares under the Exchange
Act, and expenses incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Manager and for expenses incurred
for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors
or prospective investors. If Shares having an aggregate offering price of $100,000,000 or
more have not been offered and sold under this Agreement or the Alternative Distribution
Agreements by the 18-month anniversary of this Agreement (or such earlier date at which the
Company terminates this Agreement) (the “Determination Date”), the Company shall reimburse
the Manager and the Alternative Managers for all reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of a single counsel for the Manager and the
Alternative Managers incurred by them in connection with the transactions contemplated by
this Agreement (the “Expenses”); provided that the Expenses shall not exceed an aggregate
under this Agreement and each of the Alternative Distribution Agreements of $150,000. The
Expenses shall be divided among the Manager and the Alternative Managers in amounts
proportionate to the aggregate offering price of Shares sold by the Manager and the
Alternative Managers under this Agreement and the Alternative Distribution Agreements, after
taking into account the amount of Expenses actually paid by the Manager and the Alternative
Managers, and shall be due and payable by the Company to the Managers within five (5)
business days of the Determination Date.
(g) Use of Proceeds. The Company will use the net proceeds received in connection with
this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package.
(h) Absence of Manipulation. The Company 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 Shares.
(i) Listing and Reservation of Common Shares. The Company will use its commercially
reasonable efforts to cause the Shares to be listed for trading on the NYSE and to maintain
such listing. The Company will reserve out of authorized but unissued Common Shares and
keep available at all times, free of pre-emptive rights, the full number of Shares to be
issued and sold hereunder.
(j) Disclosure of Sales. The Company will disclose in its Quarterly Reports on Form
10-Q and in its Annual Reports on Form 10-K the number of Shares sold through the Manager
and the Alternative Managers pursuant to this Agreement and the Alternative Distribution
Agreements and the net proceeds received by the Company with respect to sales of Shares
pursuant to this Agreement and the Alternative Distribution Agreements, together with any
other information that the Company reasonably believes is required to comply with the Act or
the Rules and Regulations thereunder. The Company may also file a prospectus supplement to
the Prospectus included as part of the Registration Statement with the Commission under the
applicable paragraph of Rule 424(b) of the Act, which prospectus supplement will set forth
such information, in which event the Company will deliver such number of copies of each such
prospectus supplement to the NYSE as required by such exchange (which may be satisfied by
filing with the Commission on its Electronic Data Gathering, Analysis and Retrieval system
if permitted by the rules of the NYSE).
(k) Officers’ Certificates. On the date of this Agreement and at each Representation
Date, the Company will furnish or cause to be furnished forthwith to the Manager a
certificate dated as of such date,
14
substantially in the form attached hereto as Schedule G, to the effect that the
statements contained in the certificate referred to in Section 5(g) of this Agreement which
were last furnished to the Manager are true and correct at such Representation Date as
though made at and as of such time (except that such statements shall be deemed to relate to
the Registration Statement, the General Disclosure Package and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor
as the certificate referred to in said Section 5(g), but modified as necessary to relate to
the Registration Statement and the Prospectus as amended and modified and supplemented, or
to the document incorporated by reference into the Prospectus, to the time of delivery of
such certificate.
(l) Opinions of Company Counsel. On the date of this Agreement and at each
Representation Date, the Company will furnish or cause to be furnished to the Manager and to
counsel to the Manager the written opinion of Xxxxx Lord Xxxxxxx & Xxxxxxx LLP or other
counsel reasonably satisfactory to the Manager, dated as of such date, in a form and
substance reasonably satisfactory to the Manager and its counsel, of the same tenor as the
opinion referred to in Section 5(e) of this Agreement, but modified as necessary to relate
to the Registration Statement, the General Disclosure Package and the Prospectus as amended
and supplemented, or to the document incorporated by reference into the Prospectus, to the
time of delivery of such opinion or, in lieu of such opinion, counsel last furnishing such
letter to the Manager shall furnish the Manager with a letter substantially to the effect
that the Manager may rely on such last opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that statements in such last letter shall
be deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(m) Comfort Letters. On the date of this Agreement and at each Representation Date,
the Company will cause Deloitte & Touche LLP, or other independent accountants reasonably
satisfactory to the Manager, to furnish to the Manager a letter, as of such Representation
Date, in form reasonably satisfactory to the Manager and its counsel, of the same tenor as
the letter referred to in Section 5(a) hereof, but modified as necessary to relate to the
Registration Statement, the General Disclosure Package and the Prospectus, as amended and
supplemented, or to the document incorporated by reference into the Prospectus, to the date
of such letter.
(n) Rule 433 Compliance. To comply with the requirements of Rule 433 under the Act
applicable to any “issuer free writing prospectus,” as defined in such rule, including
timely filing with the Commission where required, legending and record keeping.
(o) Consent to Trading. The Company consents to the Manager trading in the Company’s
Common Shares for the Manager’s own account and for the account of its clients at the same
time as sales of Shares occur pursuant to this Agreement.
(p) Failure to Timely File under Rule 424. If to the knowledge of the Company, all
filings required by Rule 424 in connection with this offering shall not have been made or
the representation in Section 2(b) shall not be true and correct on the applicable
Settlement Date, the Company will offer to any person who has agreed to purchase Shares from
the Company as the result of an offer to purchase solicited by the Manager the right to
refuse to purchase and pay for such Shares.
(q) Due Diligence. The Company will afford the Manager, on reasonable notice, a
reasonable opportunity to conduct a due diligence investigation with respect to the Company
customary in scope for transactions contemplated hereby (including, without limitation, the
availability of the chief financial officer and general counsel to respond to questions
regarding the business and financial condition of the Company and the right to have made
available to them for inspection such records and other information as they may reasonably
request).
(r) Restriction on Sale of Securities. At any time that sales of Shares under this
Agreement have been made but not yet settled, or at any time that the Company has
outstanding with the Manager instructions to sell Shares under this Agreement, but such
instructions have not been fulfilled or cancelled, the Company will not offer, sell, issue,
contract to sell, pledge or otherwise dispose of any Common Shares or any securities
convertible into or exchangeable or exercisable for any of Common Shares, in each case
without
15
giving the Manager at least three business days’ prior written notice specifying the
nature of the proposed sale and the date of such proposed sale; provided, however, that such
restriction will not be required in connection with the Company’s issuance or sale of (a)
any securities issued or to be issued pursuant to the Company’s equity incentive or award
plans, including securities of the Company issued upon the exercise or vesting thereof, or
upon conversion of operating partnership units, (b) Common Shares to be issued as partial or
full payment for properties or other assets directly or indirectly acquired or to be
acquired by the Company or its Subsidiaries, (c) the Shares to be sold hereunder or under
any Alternative Distribution Agreement, or (d) any securities of the Company issued pursuant
to, or upon the exercise, conversion, redemption or settlement of, any securities of the
Company that are outstanding at the time such order is delivered.
5. Conditions of the Obligations of the Manager. The obligations of the Manager hereunder
with respect to any order submitted to the Manager by the Company to sell Shares are subject to the
accuracy of the representations and warranties of the Company herein, to the performance by the
Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Manager shall have received a letter of Deloitte
& Touche LLP, or other independent accountants reasonably satisfactory to the Manager, on
each Representation Date, dated such date, confirming that they are a registered public
accounting firm and independent public accountants within the meaning of the Securities Laws
and substantially in the form of Schedule F hereto.
(b) Filing of Prospectus. The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) hereof. No stop order suspending
the effectiveness of the Registration Statement or of any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted or, to the knowledge
of the Company or the Manager, shall be contemplated by the Commission.
(c) No Material Adverse Change. Since the respective dates as of which information is
given in the General Disclosure Package and the Prospectus, there shall not have been any
material adverse change or any development involving a prospective material adverse change,
in or affecting the general affairs, business, prospects, management, properties, financial
position, shareholders’ equity or results of operations of the Company and its Subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the General Disclosure
Package and the Prospectus, the effect of which in the judgment of the Manager makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated by this Agreement.
(d) Ratings. Other than as set forth or contemplated in the General Disclosure Package
and the Prospectus, subsequent to the execution and delivery of this Agreement, there shall
not have occurred any downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that indicates anything other
than a stable outlook, in the rating accorded any securities of or guaranteed by the Company
by Standard & Poor’s Ratings Services or Xxxxx’x Investors Services; provided, however, that
in the case of any Settlement Date, such downgrading or notice also shall not have occurred
or been given subsequent to the date of sale of the Shares to be delivered on such
Settlement Date.
(e) Opinion of Counsel for Company. The Manager shall have received an opinion, on
each Representation Date, dated such date, of Xxxxx Lord Xxxxxxx & Xxxxxxx LLP, counsel for
the Company, or other counsel reasonably satisfactory to the Manager, to the effect that:
(i) the Company has been duly organized and is validly existing as a real estate
investment trust under the laws of the State of Texas, with power and authority to own
its properties and conduct its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus;
(ii) the Company is qualified for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to
16
require such qualification, other than where the failure to be so qualified or in
good standing would not have a Material Adverse Effect;
(iii) each of the Significant Subsidiaries has been duly organized and is validly
existing as a corporation, limited partnership or limited liability company, as the case
may be, in good standing under the laws of its jurisdiction of organization, with power
and authority to own its properties and conduct its business as described in the
Registration Statement, the General Disclosure Package and the Prospectus; to the best
of such counsel’s knowledge, except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus or for investments in securities that are
not, individually or in the aggregate, material to the Company and its Subsidiaries
taken as a whole, the Company owns no capital stock or other beneficial interest in any
corporation, partnership, trust, joint venture or other business entity; and except as
otherwise stated in the Registration Statement, the General Disclosure Package and the
Prospectus, all of the issued and outstanding capital stock or other ownership interests
of each Significant Subsidiary that is a corporation or similar entity have been duly
authorized and are validly issued, are fully paid and non-assessable and, to the best of
the knowledge of such counsel, are owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim;
(iv) each of the Significant Subsidiaries has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or conduct any business,
so as to require such qualification, other than where the failure to be so qualified or
in good standing would not have a Material Adverse Effect on the Company and its
Subsidiaries taken as a whole;
(v) other than as set forth or contemplated in the Registration Statement, the
General Disclosure Package and the Prospectus, there are no legal or governmental
investigations, actions, suits or proceedings pending or, to the best of such counsel’s
knowledge, threatened to which the Company or any of its Subsidiaries is or may be a
party or to which any property of the Company or any of its Subsidiaries is or may be
the subject which, if determined adversely to the Company or such Subsidiary, could
individually or in the aggregate reasonably be expected to have a Material Adverse
Effect; and such counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or required
to be described in the Registration Statement, the General Disclosure Package and the
Prospectus which are not filed or incorporated by reference from another filing with the
Commission or described as required;
(vi) this Agreement has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company on the date hereof, except as rights
to indemnity and contribution hereunder may be limited by applicable law;
(vii) the Shares have been duly authorized by the Company and, when issued and
delivered by the Company from time to time pursuant to this Agreement against payment of
the applicable consideration, will be validly issued, fully paid and non-assessable.
The issuance and sale of the Shares by the Company is not subject to preemptive or other
similar rights to purchase or subscribe for shares of beneficial interest of the Company
arising under Texas law, the Declaration of Trust or By-Laws of the Company or any
contract to which the Company is a party of which they have knowledge. The Shares
conform in all material respects to the description thereof in the Registration
Statement, the General Disclosure Package and the Prospectus under the caption
“Description of Capital Shares”;
(viii) as of the date of the Prospectus, the issued and outstanding shares of
beneficial interest of the Company have been duly authorized and validly issued and are
fully paid and non-assessable (except as otherwise described in the Registration
Statement, the General Disclosure Package and the Prospectus). The
authorized capital shares of beneficial interest of the Company conform as to legal matters in all material
respects to the description thereof contained in the Registration Statement, the General
Disclosure Package and the Prospectus under the caption “Description of Capital Shares,”
as modified by the related disclosure in the documents incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus;
17
(ix) to the best of such counsel’s knowledge, neither the Company nor the
Subsidiaries are, nor with the giving of notice or lapse of time or both would be, in
violation of or in default under, their respective Declarations of Trust, Articles of
Incorporation, By-Laws or limited partnership or limited liability company agreements or
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of the Subsidiaries is a party or by
which they or any of their respective properties are bound, except for violations and
defaults which individually and in the aggregate are not material to the Company and its
subsidiaries taken as a whole; the issue and sale of the Shares and the performance by
the Company of its obligations under this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument known to such counsel
to which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or to which any of the property or assets of the Company or any
Subsidiary is subject, nor will any such action result in any violation of the
provisions of the Declaration of Trust or the By-Laws of the Company or any applicable
law or statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties;
(x) to such counsel’s knowledge, at December 31, 2009, the Company has authorized
and outstanding shares of beneficial interest as set forth in the General Disclosure
Package and the Prospectus;
(xi) no consent, approval, authorization, order, registration or qualification of
or with any court or governmental agency or body is required for the issue and sale of
the Shares or the consummation of the other transactions contemplated by this Agreement,
except such consents, approvals, authorizations, registrations or qualifications as have
been obtained under the Act and as may be required under state securities or Blue Sky
laws in connection with the sales of the Shares;
(xii) the statements in the General Disclosure Package and the Prospectus under the
caption “Description of Capital Shares” and other statements in the Registration
Statement, the General Disclosure Package and the Prospectus as modified by the related
disclosure in the documents incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to therein, in each case
fairly present the information called for with respect to such legal matters, documents
or proceedings; the descriptions in the Registration Statement, the General Disclosure
Package and the Prospectus of contracts and other documents which are filed as exhibits
to the Registration Statement are accurate in all material respects and fairly present
the information required to be shown; and to such counsel’s knowledge there are no
statutes or legal or governmental proceedings required to be described in the
Registration Statement, the General Disclosure Package or the Prospectus that are not
described as required;
(xiii) the Company is not, and will not become as a result of the consummation of
the transactions contemplated by this Agreement, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and has not been an
“investment company” at any time since 1988;
(xiv) to such counsel’s knowledge, (i) with the exception of the Registration
Rights Agreement dated as of April 15, 1997, among the Company, Camden Operating, L.P.,
and certain listed investors therein, the Registration Rights Agreement dated as of
April 6, 1998 among Oasis Residential, Inc., ISCO and IFT Properties, Ltd., as
supplemented by the Registration Rights Agreement dated as of March 13, 2002 between the
Company and Xxxxxx Israel and the Registration Rights Agreement dated as of March 13,
2002 between the Company and Xxxxxx Xxxx, trustee of The Xxxxxx Xxxx Trust dated
February 5, 2001, the Registration Rights Agreement dated as of April 2, 1998 between
Oasis Residential, Inc. and Xxxxxxx Xxxxx Private Finance Limited, as supplemented by
the Registration Rights Agreement dated as of March 13, 2002 between the Company and
Xxxxxxx Xxxxx Private Finance Inc. and a second Registration Rights Agreement dated as
of March 13, 2002 between the Company and Xxxxxxx Xxxxx Private Finance Inc., the
Registration Rights Agreement dated as of
18
February 23, 1999 among the Company, Belcrest Realty Corporation and Belair Real
Estate Corporation, as amended on December 1, 2003, May 26, 2004 and December 15, 2004,
the Registration Rights Agreement dated as of August 13, 1999 between the Company and
Edgewater Equity Partners, as amended by Amendment to Registration Rights Agreement
dated as of September 7, 1999 and Second Amendment to Registration Rights Agreement
dated as of January 7, 2000 and the Registration Rights Agreement dated as of February
28, 2005 between the Company and certain listed investors therein, there are no
contracts, agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under the Act
with respect to any securities of the Company owned by such person, and (ii) no person
has the right to require the Company to register such securities pursuant to the
Registration Statement;
(xv) the Registration Statement became effective upon filing with the Commission
pursuant to Rule 462(e) of the Rules and Regulations. Any required filing of any
preliminary prospectus and the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b) (without reference to Rule
424(b)(8)), the Company meets the requirements for the use of an “automatic shelf
registration statement” (as such term is defined in Rule 405) on Form S-3 with respect
to the issuance and sale of the Shares and, to such counsel’s knowledge, the Company has
not received any notice pursuant to Rule 401(g)(2); any required filing of each Issuer
Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the
time period required by Rule 433(d). To such counsel’s knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued under the Act
and no proceedings for that purpose have been initiated or are pending or threatened by
the Commission;
(xvi) the Registration Statement, the General Disclosure Package and the
Prospectus, excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement, General Disclosure Package and
the Prospectus, excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than financial statements and other financial
data and schedules, as to which such counsel need not express any opinion), complied as
to form in all material respects with the requirements of the Act;
(xvii) each document incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus (other than financial statements and other
financial data and schedules, as to which such counsel need not express any opinion)
complied as to form in all material respects with the Exchange Act when filed with the
Commission;
(xviii) the Company met the requirements for qualification and taxation as a REIT
for the taxable years 1993 through 2009;
(xix) the Company’s currently contemplated future assets, income, diversity of
ownership and method of operation will put it in a position for qualification and
taxation as a REIT for its taxable year ending December 31, 2010, and for its future
taxable years;
(xx) the discussion contained under the caption “Federal Income Tax Considerations
and Consequences of Your Investment” in the Registration Statement, the General
Disclosure Package and the Prospectus, accurately reflects existing law and fairly
addresses the material federal income tax issues described therein; and
(xxi) although such counsel is not passing upon, and does not assume responsibility
for, the factual accuracy, completeness or fairness of the statements contained in the
Registration Statement, the General Disclosure Package and the Prospectus and need not
have made any independent check or verification thereof (except as and to the extent
stated in paragraphs (vii), (viii), (x), (xii) and (xx) above), on the basis of such
counsel’s participation, in the course of the Company’s preparation of the Registration
Statement and the Prospectus, in conferences with officers and other representatives of
the Company, counsel for the Manager and representatives of the independent registered
public accounting firm for the Company and with the Manager, at which the contents of
the Registration Statement and
19
the Prospectus and related matters were discussed, no facts have come to such
counsel’s attention that would lead them to believe that (x) the Registration Statement,
including the Rule 430B Information, as of the “new effective date” with respect to the
Manager and the Shares pursuant to, and within the meaning of, Rule 430B(f)(2) of the
Rules and Regulations arising from the filing of the Prospectus with the Commission,
contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein not
misleading or (y) the Prospectus or any amendment or supplement thereto, at the time the
Prospectus was issued or at the time any such amended or supplemented prospectus was
issued, as the case may be, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to matters involving the
application of laws other than the laws of the United States and the State of Texas, to
the extent such counsel deems proper and to the extent specified in such opinion, if at
all, upon an opinion or opinions (in form and substance reasonably satisfactory to the
Manager’s counsel) of other counsel reasonably acceptable to the Manager’s counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. The opinion of such
counsel for the Company shall state that the opinion of any such other counsel is in
form satisfactory to such counsel and, in such counsel’s opinion, the Manager and they
are justified in relying thereon. With respect to the matters to be covered in
subparagraph (xxi) above, counsel may state its opinion and belief is based upon their
participation in the preparation of the Registration Statement and the Prospectus and
any amendment or supplement thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof (including the documents
incorporated by reference therein) but is without independent check or verification
except as specified.
(f) Opinion of Counsel for the Manager. The Manager shall have received, on each
Representation Date, from Sidley Austin LLP, counsel for the Manager, such opinion or
opinions, dated such date, with respect to such matters as the Manager may require, and the
Company shall have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters. In rendering such opinion, Sidley Austin LLP may
rely as to all matters governed by Texas law upon the opinion of Xxxxx Lord Xxxxxxx &
Xxxxxxx LLP referred to above.
(g) Officers’ Certificate. The Manager shall have received a certificate, on each
Representation Date, dated such date, of an executive officer of the Company and a principal
financial or accounting officer of the Company substantially in the form set forth on
Schedule G hereto.
(h) Listing. The Shares shall have been approved for listing on the NYSE, subject only
to notice of issuance at or prior to each Settlement Date.
(i) Actively-Traded Security. The Common Shares shall meet the definition of an
“actively-traded security” excepted from the requirements of Rule 101 of Regulation M under
the Exchange Act by subsection (c)(1) of such rule.
The Company will furnish the Manager with such conformed copies of such opinions,
certificates, letters and documents as the Manager reasonably requests. The Manager may in
its sole discretion waive compliance with any conditions to the obligations of the Manager
hereunder.
6. Indemnification and Contribution.
(a) Indemnification of the Manager. The Company will indemnify and hold harmless the
Manager, its partners, members, directors, officers, employees, agents, affiliates and each
person, if any, who controls the Manager within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each, a “Company Indemnified Party”), against any and all
losses, claims, damages or liabilities, joint or several,
20
to which such Company Indemnified Party may become subject, under the Act, the Exchange
Act, other Federal or state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact contained
in any part of the Registration Statement at any time, any Statutory Prospectus as of any
time, the Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based
upon the omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each Company
Indemnified Party for any legal or other expenses reasonably incurred by such Company
Indemnified Party in connection with investigating or defending against any loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Company Indemnified Party is a party thereto), whether threatened or commenced, and
in connection with the enforcement of this provision with respect to any of the above as
such expenses are incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with written
information furnished to the Company by the Manager specifically for use therein, it being
understood and agreed that the only such information furnished by the Manager consists of
the information described as such in subsection (b) below.
(b) Indemnification of Company. The Manager will indemnify and hold harmless the
Company, each of its trust managers and each of its officers who signs a Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act (each, a “Manager Indemnified Party”), against
any losses, claims, damages or liabilities to which such Manager Indemnified Party may
become subject, under the Act, the Exchange Act, other Federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any part of the Registration Statement at any
time, any Statutory Prospectus as of any time, the Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or the alleged omission of a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Manager specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred by such
Manager Indemnified Party in connection with investigating or defending against any such
loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever
(whether or not such Manager Indemnified Party is a party thereto), whether threatened or
commenced, based upon any such untrue statement or omission, or any such alleged untrue
statement or omission as such expenses are incurred, it being understood and agreed that the
only such information furnished by the Manager consists of the following information in the
Prospectus furnished on behalf of the Manager: the information concerning the Manager
contained in the first paragraph and the fifteenth paragraph under the heading “Plan of
Distribution” in the Prospectus Supplement.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified
party under this Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided further that the failure to notify the indemnifying party shall
not relieve it from any liability that it may have to an indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by
21
such indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened action in respect
of which any indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any claims that are
the subject matter of such action 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 an indemnified
party.
(d) Contribution. If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or (b) above,
then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Manager on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Manager on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and
the Manager on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company bear to the
total commissions received by the Manager. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Manager and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d), no Manager shall
be required to contribute any amount in excess of the amount by which the total price at
which the Shares sold by it and distributed to the public exceeds the amount of any damages
which the Manager has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Company and the Manager agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations referred to
in this subsection 6(d).
7. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the Manager set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by or on behalf of
the Manager, the Company or any of their respective representatives, officers, trust managers or
directors or any controlling person, and will survive delivery of and payment for the Shares. If
any Shares have been sold hereunder, the representations and warranties in Section 2 and all
obligations under Section 4 shall also remain in effect.
8. Termination.
(a) The Company shall have the right, by giving written notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time. Any such
termination shall be without liability of any party to any other party except that (i) with
respect to any pending sale through the Manager for the Company, the obligations of the
Company, including in respect of compensation of the Manager, shall remain in full force and
effect notwithstanding the termination and (ii) the provisions of Sections 2, 4(f), 6, 7, 9,
12 and 13 of this Agreement shall remain in full force and effect notwithstanding such
termination.
22
(b) The Manager shall have the right, by giving written notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time. Any such
termination shall be without liability of any party to any other party except that the
provisions of Sections 2, 4(f), 6, 7, 9,12 and 13 of this Agreement shall remain in full
force and effect notwithstanding such termination.
(c) This Agreement shall remain in full force and effect until and unless terminated
pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the parties;
provided that any such termination by mutual agreement shall in all cases be deemed to
provide that Sections 2, 4(f), 6 and 7 of this Agreement shall remain in full force and
effect.
(d) Any termination of this Agreement shall be effective on the date specified in such
notice of termination; provided that such termination shall not be effective until the close
of business on the date of receipt of such notice by the Manager or the Company, as the case
may be. Except for any purchase pursuant to a Terms Agreement, if such termination shall
occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in
accordance with the provisions of Section 3(g) of this Agreement.
(e) In the case of any purchase by the Manager pursuant to a Terms Agreement, the
Manager may terminate such Terms Agreement, at any time at or prior to the Settlement Date
(i) if there has been, since the respective dates as of which information is given in the
General Disclosure Package and the Prospectus, any material adverse change or any
development involving a prospective material adverse change, in or affecting the general
affairs, business, prospects, management, properties, financial position, shareholders’
equity or results of operations of the Company and its Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the General Disclosure Package and the
Prospectus, the effect of which in the judgment of the Manager makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated by such Terms Agreement, 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 Manager, impracticable or inadvisable to
market the Shares or to enforce contracts for the sale of Shares, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the Commission of the
NYSE, or if trading generally on the American Stock Exchange or the NYSE or Nasdaq has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the Financial Industry Regulatory Authority, Inc. or any
other governmental authority, or (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or (v) if a
banking moratorium has been declared by either Federal of New York authorities.
9. Notices. All communications hereunder will be in writing and mailed, delivered or sent via
facsimile and confirmed to the Manager at Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: ECM Syndicate Desk (Facsimile No. (000)
000-0000) with a copy to General Counsel (Facsimile No. (000) 0000-0000), or, if sent to the
Company, will be mailed, delivered or send via facsimile and confirmed to it at Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Facsimile No. (000) 000-0000 Attn: Xxxx Xxxxxxx, Senior
Vice President-Finance and Treasurer; provided, however, that any notice to the Manager pursuant to
Section 6 will be mailed delivered or sent via facsimile and confirmed to the Manager.
10. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, trust managers and directors and
controlling persons referred to in Section 6, and no other person will have any right or obligation
hereunder.
11. 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.
12. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
23
(a) No Other Relationship. The Manager has been retained solely to act as sales agent
and/or principal in connection with the purchase and sale of Shares and that no fiduciary,
advisory or agency relationship between the Company and the Manager has been created in
respect of any of the transactions contemplated by this Agreement or the Prospectus,
irrespective of whether the Manager has advised or is advising the Company on other matters;
(b) Arms’ Length Negotiations. The terms set forth in this Agreement were established
by the Company following discussions and arms-length negotiations with the Manager and the
Company is capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Manager
and its affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that the Manager has no obligation to disclose
such interests and transactions to the Company by virtue of any fiduciary, advisory or
agency relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it
may have against the Manager for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that the Manager shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on behalf of or in right of the Company, including shareholders, employees or
creditors of the Company.
13. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby in Federal and state
courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such suit or proceeding in any
such court has been brought in an inconvenient forum.
24
If the foregoing is in accordance with the Manager’s understanding of our agreement, kindly
sign and return to the Company one of the counterparts hereof, whereupon it will become a binding
agreement between the Company and the Manager in accordance with its terms.
Very truly yours,
| Camden Property Trust |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
The foregoing Amended and Restated Distribution
Agency Agreement is hereby confirmed and accepted as
of the date first above written.
Deutsche Bank Securities Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
25
SCHEDULE A
FORM OF TERMS AGREEMENT
, 20___
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Camden Property Trust, a Texas real estate investment trust (the “Company”), proposes, subject
to the terms and conditions stated herein and in the Amended and Restated Distribution Agency
Agreement, dated May 10, 2010 (the “Distribution Agreement”), between the Company and Deutsche Bank
Securities Inc. (the “Manager”), to issue and sell to the Manager the securities specified in the
Schedule hereto (the “Purchased Securities”) [, and solely for the purpose of covering
over-allotments, to grant to the Manager the option to purchase the additional securities specified
in the Schedule hereto (the “Additional Securities”)]. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Distribution Agreement.
[The Manager shall have the right to purchase from the Company all or a portion of the
Additional Securities as may be necessary to cover over-allotments made in connection with the
offering of the Purchased Securities, at the same purchase price per share to be paid by the
Manager to the Company for the Purchased Securities. This option may be exercised by the Manager
at any time (but not more than once) on or before the 30th day following the date
hereof, by written notice to the Company. Such notice shall set forth the aggregate number of
shares of Additional Securities as to which the option is being exercised, and the date and time
when the Additional Securities are to be delivered (such date and time being herein referred to as
the “Option Settlement Date”); provided, however, that the Option Settlement Date shall not be
earlier than the Settlement Date (as set forth in the Schedule hereto) nor earlier than the second
business day after the date on which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised. Payment of the purchase
price for the Additional Securities shall be made at the Option Settlement Date in the same manner
and at the same office as the payment for the Purchased Securities.]
Each of the provisions of the Distribution Agreement not specifically related to the
solicitation by the Manager, as agent of the Company, of offers to purchase securities is
incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth in full herein. Each of the
representations, warranties and agreements set forth therein shall be deemed to have been made as
of the date of this Terms Agreement and the Settlement Date [and any Option Settlement Date],
except that each representation and warranty in Section 2 of the Distribution Agreement which makes
reference to the Prospectus (as defined therein) shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the Prospectus, and also a
representation and warranty as of the date of this Terms Agreement and the Settlement Date [and any
Option Settlement Date] in relation to the Prospectus as amended and supplemented to relate to the
Purchased Securities.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may
be, relating to the Purchased Securities [and the Additional Securities], in the form heretofore
delivered to the Manager is now proposed to be filed with the Securities and Exchange Commission.
Subject to the terms and conditions set forth herein and in the Distribution Agreement, which
are incorporated herein by reference, the Company agrees to issue and sell to the Manager and the
latter agrees to purchase from the Company the Purchased Securities at the time and place and at
the purchase price set forth in the Schedule hereto.
A-1
Notwithstanding any provision of this Terms Agreement or any terms agreement to the contrary,
the Company consents to the Manager trading in the Common Shares for the Manager’s own account and
for the account of its clients at the same time as sales of the Shares occur pursuant to this Terms
Agreement.
If the foregoing is in accordance with your understanding, please sign and return to us a
counterpart hereof, whereupon this Terms Agreement, including those provisions of the Distribution
Agreement incorporated herein by reference, shall constitute a binding agreement between the
Manager and the Company.
| CAMDEN PROPERTY TRUST |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted and agreed as of
the date first above written:
the date first above written:
| DEUTSCHE BANK SECURITIES INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
A-2
SCHEDULE B
| 1. | General Use Free Writing Prospectuses (included in the General Disclosure Package) |
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
None
| 2. | Other Information Included in the General Disclosure Package |
The following information is also included in the General Disclosure Package:
None
B-1
SCHEDULE C
SUBSIDIARIES OF CAMDEN PROPERTY TRUST
2009 COLP Community Owner, LLC (2) |
2009 COLP Community Owner Member, LLC (2) |
2009 CPT Community Owner, LLC (1) |
2009 CPT Community Owner Member, LLC |
2009 CSP Community Owner, LLC (2) |
2009 CSP Community Owner Member, LLC (2) |
2009 CUSA Community Owner, LLC |
2009 CUSA Community Owner Member, LLC |
2800 Main, LLC |
CMJGP Member, LLC |
CPT Addison GP, LLC |
CPT Addison, LP (2) |
CPT Community Owner, LLC (1) |
CPT Community Owner Member, LLC |
CPT Development (Xxxxxx), LP (2) |
CPT Development (Xxxxxx) GP, LLC |
CPT Development (Xxxxxx) Investor GP, LLC |
CPT Development (Xxxxxx) Investor, LP |
CPT Fountain Palms GP, LLC (2) |
CPT Fountain Palms, LP (2) |
CPT-GP, Inc. |
CPT Xxxxx Springs GP, LLC |
CPT Xxxxx Springs, LP (2) |
CPT-LP, Inc. |
CPT Park GP, LLC |
CPT Park, LP (2) |
CPT Parkside GP, LLC |
CPT Parkside, LP (2) |
CPT Pecos Ranch GP, LLC |
CPT Pecos Ranch, LP (2) |
CPT Pines GP, LLC |
CPT Pines, LP (2) |
CPT Sierra GP, LLC |
CPT Sierra, LP (2) |
CPT Sugar Grove GP, LLC |
CPT Sugar Grove, LP (2) |
CPT Summit GP, LLC |
CPT Summit, LP (2) |
CPT Tiara GP, LLC |
CPT Tiara, LP (2) |
CPT Towne Center GP, LLC |
CPT Towne Center, LP (2) |
CSP Community Owner, LLC (2) |
CSP Community Owner Member, LLC (2) |
Camden Builders, Inc. (3) |
Camden College Park Borrower GP, LLC (2) |
Camden College Park Borrower, LP (2) |
Camden College Park, LP (2) |
Camden College Park GP, LLC (2) |
Camden Development, Inc. (1) |
Camden East Riverside TRS, Inc. (3) |
Camden GDP, L.P. |
C-1
Camden GDP GenPar, Inc. (formally known as Camden Acquisition, Inc.) |
Camden Jamboree Development GP, LLC (2) |
Camden Jamboree, LP (2) |
Camden Jamboree Development, LP (2) |
Camden Jamboree GP, LLC (2) |
Camden Mezz Lender GP, LLC |
Camden Mezz Lender, LP |
Camden Multifamily Co-Investment Fund, LP (2) |
Camden Multifamily Value Add Fund Advisor, LLC |
Camden Multifamily Value Add Fund GP, LLC |
Camden Multifamily Value Add Fund, LP (2) |
Camden MW, LLC |
Camden Norfolk Plaza GP, LLC (2) |
Camden Norfolk Plaza, LP (2) |
Camden Operating, L.P. (1)(2) |
Camden Plaza Development GP, LLC (2) |
Camden Plaza Development, LP (2) |
Camden Properties, Inc. |
Camden Realty, Inc. (1)(3) |
Camden Summit, Inc. (1) |
Camden Summit Partnership, L.P. (1)(2) |
Camden Technology, Inc. (3) |
Camden USA, Inc. (1) |
Camden World Gateway, LLC |
Cockerell Capital, Inc. (2) |
Denver West Apartments, LLC (2) |
Foxcroft East Associates (2) |
Fund 1007 South Congress, LLC (2) |
Fund Xxxxx Xxxx, LLC (2) |
Fund Xxxxx Xxxx Phase 2, LLC |
Fund Celebration, LLC |
Fund Countryway, LLC |
Fund Pointe At Kings Avenue, LLC |
G&I V Midwest Residential LLC (2) |
G&I V Brookside LLC (2) |
G&I V Xxxxxxx LLC (2) |
G&I V Prospect Park LLC (2) |
G&I V Cedar Lakes LLC (2) |
G&I V Cove West LLC (2) |
G&I V Cross Creek LLC (2) |
G&I V Passage LLC (2) |
G&I V Westchase LLC (2) |
G&I V Oxmoor LLC (2) |
Jefferson at Xxxxxx Farm, LLC |
Xxx Vista Apartments, LLC |
Nagrom Enterprises, Inc. |
NoMa Development, LLC (2) |
NSHE College Park GP, LLC |
NSHE College Park, LP (2) |
NSHE Lansdowne, LLC (2) |
Oasis-California, Inc. |
Oasis Martinique, LLC (2) |
Orange Court, LLC |
ORI, Inc. |
ORI-Colorado, Inc. |
ORI Park, Inc. |
C-2
PAPEC Silo Creek, LLC (2) |
Portofino Place, Ltd. (2) |
Primary Capital Investments, LLC |
Selma & Vine Hollywood, LLC |
St. Clair Cemetery, Inc. |
Sierra-Nevada Multifamily Investments, LLC (2) |
South Capitol Acquisition, LLC (2) |
Summit Apartment Builders, Inc. (2)(3) |
Summit Clearbrook, LLC (2) |
Summit Grand Parc, LLC (2) |
Summit Grandview, LLC (2) |
Summit Management Company (2)(3) |
Summit Roosevelt, LLC (2) |
Summit Xxxxxxx, LLC (2) |
Summit Valleybrook, LLC (2) |
The Apartments at Xxxx Xxxx, LLC |
Belle Xxxxx Investment 2006 L.P. (2) |
Braeswood Investment 2006 L.P. (2) |
Lakes at 610 Investment 2008 LP (2) |
Town Lake Investment 2007 L.P. (2) |
| (1) | Significant subsidiary as defined in Rule 1-02(w) of Regulation S-X. | |
| (2) | Not wholly-owned directly or indirectly by Camden Property Trust | |
| (3) | Taxable REIT subsidiary. |
C-3
SCHEDULE D
FORM OF PLACEMENT INSTRUCTIONS
, 20___
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear :
Notice is made pursuant to the Amended and Restated Distribution Agency Agreement, dated as of
May 10, 2010 (the “Agreement”), between Deutsche Bank Securities Inc. (the “Manager”) and Camden
Property Trust, a Texas real estate investment trust (the “Company”), relating to the issuance and
sale of the Company’s common shares of beneficial interest, par value $0.01 per share, having an
aggregate offering price of up to $250,000,000 (the “Shares”). Unless otherwise defined below,
capitalized terms defined in the Agreement shall have the same meanings when used herein.
The Company hereby confirms (i) that is not, nor could it be deemed to be, in possession of
non-public information material to the Company and its Subsidiaries taken as a whole, (ii) that all
representations and warranties made by the Company in the Agreement are true and correct as of the
date hereof, (iii) the maximum number of Shares to be sold below, together with the aggregate
outstanding Common Shares and the maximum number of Common Shares reserved by the Company for
issuance for other purposes, does not exceed the total number of Common Shares authorized by the
Company’s Declaration of Trust, (iv) in accordance with the resolutions of the Company’s Board of
Trust Managers adopted on February 25, 2010 (the “Resolutions”), the issuance and sale of Shares
within the parameters set forth below has been approved and (v) the Resolutions have not been
modified or rescinded and remain in full force and effect.
The Company hereby requests that the Manager use its reasonable efforts to engage in the
following transaction:
Maximum Number of Shares to be Sold: |
||||||
| Compensation to Manager: | % of gross offering proceeds of Shares sold | |||||
Minimum Price at which Shares may be Sold:
|
per share | |||||
Date(s) on which Shares may be Sold: |
||||||
| Very truly yours, Camden Property Trust |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
D-1
SCHEDULE E
Authorized officers of the Company:
Xxxxxxx X. Xxxxx
D. Xxxxx Xxxx
H. Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxxxx X.X. Xxxxxxx
J. Xxxxxx Xxxxxx
D. Xxxxx Xxxx
H. Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxxxx X.X. Xxxxxxx
J. Xxxxxx Xxxxxx
Authorized persons of the Manager:
Xx. Xxxxx Xxxxxx
Managing Director
Floor 4
00 Xxxx Xxxxxx
Xxx Xxxx, XX, XXX
Telephone: (000) 000-0000
E-mail: xxxxx.xxxxxx@xx.xxx
Managing Director
Floor 4
00 Xxxx Xxxxxx
Xxx Xxxx, XX, XXX
Telephone: (000) 000-0000
E-mail: xxxxx.xxxxxx@xx.xxx
Xxxxx-C Xxxxxxx
Vice President
Floor 4
00 Xxxx Xxxxxx
Xxx Xxxx, XX, XXX
Telephone: (000) 000-0000
E-mail: xxxxx-x.xxxxxxx@xx.xxx
Vice President
Floor 4
00 Xxxx Xxxxxx
Xxx Xxxx, XX, XXX
Telephone: (000) 000-0000
E-mail: xxxxx-x.xxxxxxx@xx.xxx
Xxxxxx Xxxxxxxx
Associate
Floor 4
00 Xxxx Xxxxxx
Xxx Xxxx, XX, XXX
Telephone: (000) 000-0000
E-mail: xxxxxx.xxxxxxxx@xx.xxx
Associate
Floor 4
00 Xxxx Xxxxxx
Xxx Xxxx, XX, XXX
Telephone: (000) 000-0000
E-mail: xxxxxx.xxxxxxxx@xx.xxx
E-1
SCHEDULE F
The Manager shall have received letters, dated, respectively, the date hereof and the date of
the Agreement, of Deloitte & Touche LLP, or other independent accountants reasonably satisfactory
to the Manager, confirming that they are an independent registered public accounting firm within
the meaning of the Securities Laws to the effect that:
(i) in their opinion the audited consolidated financial statements and
financial statement schedules audited by them and included or incorporated by
reference in the Registration Statements and the General Disclosure Package comply
as to form in all material respects with the applicable accounting requirements of
the Securities Laws;
(ii) they have read the minutes of the meetings of the shareholders, Board of
Trust Managers and committees of the Board of Trust Managers of the Company;
(iii) they have performed the procedures specified by the Public Company
Accounting Oversight Board for a review of interim financial information as
described in PCAOB AU 722, Interim Financial Information, on the unaudited condensed
consolidated financial statements of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the General
Disclosure Package; and,
(iv). they have made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
consolidated subsidiaries as to whether the unaudited condensed consolidated
financial statements comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related rules and regulations
of the SEC; and on the basis thereof, nothing came to their attention which caused
them to believe that:
(a) the unaudited condensed consolidated financial statements, included
or incorporated by reference in the Registration Statements and the General
Disclosure Package, do not comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and the related
rules and regulations adopted by the SEC; and,
(b) any material modifications should be made to the unaudited
condensed consolidated financial statements, included or incorporated by
reference in the Registration Statements and the General Disclosure Package,
for them to be in conformity with GAAP;
(v) With respect to any period as to which officials of the Company have
advised that no consolidated financial statements as of any date or for any period
subsequent to the specified date referred to in (iv)(a) above are available, they
have made inquiries of certain officials of the Company who have responsibility for
the financial and accounting matters of the Company and its consolidated
subsidiaries as to whether, at a specified date not more than three business days
prior to the date of such letter, there were any increases in notes payable of the
Company and its consolidated subsidiaries, or any change in stockholders’ equity or
the consolidated capital stock of the Company and its consolidated subsidiaries or
any decreases in the shareholders’ equity of the Company and its consolidated
subsidiaries, as compared with the amounts shown on the most recent balance sheet
for such entities included or incorporated by reference in the Registration
Statements; or for the period from the date of the most recent unaudited quarterly
financial statements for such entities included or incorporated by reference in the
Registration Statements to such specified date, there were any decreases, as
compared with the corresponding period in the preceding year, in property revenues,
or in the total or per share (basic and diluted) amounts of income from continuing
operations attributable to common shareholders or in the total or per share (basic
and diluted) amounts of net income attributable to common shareholders or net income
of the Company and its consolidated subsidiaries and, on the basis of such inquiries
and the review of
F-1
the minutes described in paragraph (ii) above, nothing came to their attention
which caused them to believe there was any such change, increase, or decrease,
except for such changes, increases or decreases set forth in such letter which the
General Disclosure Package discloses have occurred or may occur; and
(vi) they have compared dollar amounts (or percentages derived from such
dollar amounts) and other financial and statistical information contained in the
Registration Statement, each Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectus that is an “electronic road show,” as defined in Rule
433(h)) and the General Disclosure Package, as specified by the Manager (in each
case to the extent that such dollar amounts, percentages and other financial and
statistical information are derived from the general accounting records of the
Company and its subsidiaries or are derived directly from such records by analysis
or computation), with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial and statistical information to be in
agreement with such results.
All financial statements and schedules included in material incorporated by reference
into the Registration Statement or the General Disclosure Package shall be deemed included
in the Registration Statement or the General Disclosure Package for purposes of this
Schedule.
F-2
SCHEDULE G
FORM OF OFFICERS’ CERTIFICATE
Pursuant to Section 4(k) of the Amended and Restated Distribution Agency Agreement dated May
10, 2010 (the “Agreement”) by and between Camden Property Trust, a Texas real estate investment
trust (the “Company”), and Deutsche Bank Securities Inc., [ ], solely in his
capacity as [ ] of the Company, and [ ], solely in his
capacity as [ ] of the Company, hereby certify on behalf of the Company as
follows:
(a) The representations and warranties of the Company contained in the Agreement are true and
correct on and as of the Applicable Time as if made on and as of the Applicable Time, and the
Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied under the Agreement at or prior to the Applicable Time.
(b) The Registration Statement has become effective under the Act and no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act and no proceeding for
that purpose has been instituted or is pending or, to the knowledge of the Company, threatened by
the Commission, and any request on the part of the Commission for additional information with
respect to the Registration Statement or any documents incorporated by reference therein has been
complied with to the reasonable satisfaction of counsel for the Manager. A prospectus containing
the 430B Information has been filed with the Commission in the manner and within the time period
required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing
such information shall have been filed and become effective in accordance with the requirements of
Rule 430(B)) and any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433
has been made in the manner and within the time period required by Rule 433(d).
(c) Other than as set forth or contemplated in the General Disclosure Package and the
Prospectus, subsequent to the execution and delivery of this Agreement, there has not occurred any
downgrading, nor has any notice been given of (i) any intended or potential downgrading or (ii) any
review or possible change that indicates anything other than a stable outlook, in the rating
accorded any securities of or guaranteed by the Company by Standard & Poor’s Ratings Services or
Xxxxx’x Investors Services; provided, however, that in the case of any Settlement Date, such
downgrading or notice also has not have occurred or been given subsequent to the date of sale of
the Shares to be delivered on such Settlement Date.
(d) Since the respective dates as of which information is given in the General Disclosure
Package and the Prospectus, there has not occurred any material adverse change, or any development
involving a prospective material adverse change (excluding any development resulting from any
event, circumstance, development, change or effect (i) in general economic or business conditions,
(ii) in financial or securities markets generally or (iii) generally affecting the business or
industry in which the Company operates), in or affecting the general affairs, business, prospects
(excluding any development resulting from any event, circumstance, development, change or effect
(i) in general economic or business conditions, (ii) in financial or securities markets generally
or (iii) generally affecting the business or industry in which the Company operates), management,
properties, financial position, shareholders’ equity or results of operations of the Company and
its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the General
Disclosure Package and the Prospectus.
Capitalized terms used and not defined herein have the respective meanings given them in the
Agreement. Xxxxx Lord Bissell & Liddell LLP is entitled to rely on this certificate in connection
with the opinions such firm is rendering pursuant to the Agreement.
G-1
IN WITNESS WHEREOF, the undersigned have signed their names as of the ___day of ___, 20_.
| CAMDEN PROPERTY TRUST |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
G-2
