EDUCATION REALTY TRUST, INC. 3,000,000 SHARES CONTROLLED EQUITY OFFERINGSM SALES AGREEMENT
Exhibit 1.1
3,000,000 SHARES
CONTROLLED EQUITY OFFERINGSM
May 10, 2007
CANTOR XXXXXXXXXX & CO.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Education Realty Trust, Inc., a Maryland corporation (the “Company”) and Education
Realty Operating Partnership, L.P., a Delaware limited partnership (the "Operating
Partnership”), the sole general partner of which is Education Realty OP GP, Inc., which is
owned 100% by the Company, confirm their agreement (this “Agreement”) with Cantor
Xxxxxxxxxx & Co. (“CF&Co”), as follows:
The Company has filed, in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the “Securities Act”),
with the Commission a registration statement on Form S-3 (File No. 333-136147), including a base
prospectus, relating to certain securities, including the Shares to be issued from time to time by
the Company, and which incorporates by reference documents that the Company has filed or will file
in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a
prospectus supplement specifically relating to the Shares (the “Prospectus Supplement”) to
the base prospectus included as part of such registration statement. The Company will furnish to
CF&Co, for use by CF&Co, copies of the prospectus included as part of such registration statement,
as supplemented by the Prospectus Supplement, relating to the Shares. Except where the context
otherwise requires, such registration statement, as amended
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when it became effective, including all documents filed as part thereof or incorporated by
reference therein, and including any information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed
to be a part of such registration statement pursuant to Rule 430A, 430B or 430C, as applicable, of
the Securities Act, is herein called the “Registration Statement.” The base prospectus,
including all documents incorporated therein by reference, included in the Registration Statement,
as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or
Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to
Rule 424(b) under the Securities Act is herein called the “Prospectus.” Any reference
herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall
be deemed to refer to and include the documents incorporated by reference therein, and any
reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include the filing after the execution
hereof of any document with the Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any
amendment or supplement thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering Analysis and Retrieval System (“XXXXX”).
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3. Sale of Placement Shares by CF&Co. Subject to the terms and conditions herein set
forth, upon the Company’s issuance of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with
the terms of this Agreement, CF&Co, for the period specified in the Placement Notice, will use its
commercially reasonable efforts consistent with its normal trading and sales practices to sell such
Placement Shares up to the amount specified, and otherwise in accordance with the terms of such
Placement Notice. CF&Co will provide written confirmation to the Company no later than the opening
of the Trading Day (as defined below) immediately following the Trading Day on which it has made
sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day,
the compensation payable by the Company to CF&Co pursuant to Section 2 hereof with respect
to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization
of the deductions made by CF&Co (as set forth in Section 5(a) hereof) from the gross
proceeds that it receives from such sales. After consultation to the Company and subject to the
terms of the Placement Notice, CF&Co may sell Placement Shares by any method permitted by law
deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including
without limitation sales made directly on the New York Stock Exchange (the “Exchange”), on
any other existing trading market for the Common Stock or to or through a market maker. After
consultation with the Company and subject to the terms of the Placement Notice, CF&Co may also sell
Placement Shares in privately negotiated transactions. The Company acknowledges and agrees that
(i) there can be no assurance that CF&Co will be successful in selling Placement Shares, and (ii)
CF&Co will incur no liability or obligation to the Company or any other person or entity if it does
not sell Placement Shares for any reason other than a failure by CF&Co to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such Placement
Shares as required under this Section 3. For the purposes hereof, “Trading Day”
means any day on which shares of Common Stock are purchased and sold on the principal market on
which the Common Stock is listed or quoted.
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(a) The Company satisfies all of the requirements of the Securities Act for use of Form S-3
for the offering of the Shares contemplated hereby.
(b) The Registration Statement was declared effective by the Commission on August 25, 2006.
No stop order suspending the effectiveness of the Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
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(d) The Company has delivered to CF&Co one complete copy of the Registration Statement and a
copy of each consent and certificate of experts filed as a part thereof, and conformed copies of
the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in
such quantities and at such places as CF&Co has reasonably requested. The Prospectus delivered to
CF&Co for use in connection with the offering of Shares will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) At the respective times the Registration Statement and each amendment thereto became
effective, at each deemed effective date with respect to CF&Co pursuant to Rule 430B(f)(2) of the
Securities Act, as the case may be, the Registration Statement complied and will comply in all
material respects with the requirements of the Securities Act, and did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The preceding sentence does not apply
to statements in or omissions from the Registration Statement or any amendment thereto in reliance
upon and in conformity with written information relating to CF&Co furnished to the Company in
writing by CF&Co expressly for inclusion in any of the aforementioned documents.
(f) Neither the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued, as of the date hereof, and at each
Representation Date, as the case may be, included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or
supplemented, in reliance upon and in conformity with written information relating to CF&Co
furnished to the Company in writing by CF&Co expressly for inclusion in any of the aforementioned
documents.
(g) Each document incorporated by reference in the Registration Statement or the Prospectus
heretofore filed, when it was filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder, and any further documents so filed and
incorporated after the date of this Agreement will, when they are filed, conform in all material
respects with the requirements of the Exchange Act and the rules and regulations thereunder; no
such document when it was filed (or, if an amendment with respect to any such document was filed,
when such amendment was filed), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading; and no such document, when it is filed, will contain an untrue statement of
a material fact or will omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
(h) Each “Issuer Free Writing Prospectus” (as defined in Rule 433 of the Securities
Act (“Rule 433”)), as of its issue date and as of each Applicable Time (as defined in
Section 20 hereof), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the
Prospectus, including any incorporated document deemed to be a part thereof that has not been
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superseded or modified. The foregoing sentence does not apply to statements in or omissions
from any issuer free writing prospectus based upon and in conformity with written information
furnished to the Company by CF&Co specifically for use therein.
(i) All of the issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and have been issued in compliance
with applicable federal and state securities laws. None of the Company’s outstanding shares of
Common Stock were issued in violation of any preemptive rights, rights of first refusal or other
similar rights; except as set forth in the Prospectus, the Company is not a party to or bound by
any outstanding options, warrants or similar rights to subscribe for, or contractual obligations to
issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or
exchangeable for any of such capital stock; the Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered against full payment therefor in
accordance with the terms hereof will be validly issued, fully paid and nonassessable and free of
any preemptive rights, rights of first refusal or other or similar rights; the capital stock
(including the Shares) of the Company conforms to the description thereof contained in the
Prospectus; and the delivery of the Shares being sold by the Company against payment therefor
pursuant to the terms of this Agreement will pass valid title to the Shares being sold by the
Company, free and clear of any claim, encumbrance or defect in title, and without notice of any
lien, claim or encumbrance. The certificates used by the Company to evidence the Common Stock are
in valid and sufficient form.
(j) Immediately after the transactions contemplated by this Agreement, all of the issued and
outstanding Common Units (as defined below) will be validly issued, fully paid and nonassessable.
Immediately after the transactions contemplated by this Agreement, none of the outstanding common
units of limited partnership interest in the Operating Partnership
(“Common Units”) has
been or will be issued or is owned or held in violation of any preemptive right, right of first
refusal or other similar right; and the outstanding Common Units have been or will be offered, sold
and issued by the Operating Partnership in compliance with applicable federal and state securities
laws.
(k) Each of the Company and its subsidiaries is duly organized and validly existing in good
standing under the laws of the state of its incorporation or organization with full corporate,
partnership or entity power and authority, as the case may be, to own, lease and operate its
properties and to conduct its business as presently conducted and as described in the Prospectus
and is duly registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure to so register or qualify has not had
or will not have a material adverse effect on the condition (financial or other), business,
properties, or results of operations of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”). The Company owns 100% of Education Realty OP GP, Inc., which is
the sole general partner of the Operating Partnership, and the Company, Education Realty OP GP,
Inc., Education Realty Limited Partner, LLC, Education Realty OP Limited Partner Trust, Xxxxx &
O’Hara, Inc., Place Properties, L.P., and certain officers of the Company and their affiliates
collectively own a percentage interest in the Operating Partnership. Except as described above, the
Company or the Operating Partnership is the sole direct or indirect owner of all of the equity
interests in each of the subsidiaries other than the Operating Partnership.
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(l) The outstanding equity interests of each of the Company’s subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security interests, liens, encumbrances,
equities or claims. The Company does not have any subsidiaries and does not own a material interest
in or control, directly or indirectly, any other corporation, partnership, joint venture (other
than WEDR Riverside Mezz Investors V, L.L.C., WEDR Xxxxxxx Investors V, L.L.C., and APF EDR, LP, of
which the Company, through its Operating Partnership, owns a 10%, 10% and 10% interest,
respectively), association, trust or other business organization, except as set forth in Exhibit
21.1 to the Company’s most recent Annual Report on Form 10-K incorporated by reference into the
Registration Statement. As used in this Agreement, subsidiaries shall mean direct and indirect
subsidiaries of the Company.
(m) Except as described in the Prospectus, there is no action, suit, inquiry, proceeding or
investigation by or before any court or governmental or other regulatory or administrative agency
or commission pending or, to the best knowledge of the Company, threatened, against or involving
the Company or its subsidiaries, which might individually or in the aggregate prevent or adversely
affect the transactions contemplated by this Agreement or result in a Material Adverse Effect, nor
to the Company’s knowledge, is there any basis for any such action, suit, inquiry, proceeding or
investigation. There are no agreements, contracts, indentures, leases or other instruments that are
required to be described in the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described, filed or incorporated by reference in the Registration Statement
and the Prospectus as required by the Securities Act. All such contracts to which the Company or
any of its subsidiaries is a party have been duly authorized, executed and delivered by the Company
or the applicable subsidiary, constitute valid and binding agreements of the Company or the
applicable subsidiary and are enforceable against the Company or the applicable subsidiary in
accordance with the terms thereof, except as enforceability thereof may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights
generally and (ii) equitable principles being applied at the discretion of a court before which any
proceeding may be brought. Neither the Company nor the applicable subsidiary has received notice or
been made aware that any other party is in breach of or default to the Company or its subsidiaries
under any of such contracts.
(n) Neither the Company nor any of its subsidiaries is (i) in violation of (A) its
Organizational Documents, (B) to the Company’s knowledge any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of its subsidiaries, the violation
of which would have a Material Adverse Effect or (C) any decree of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries; or (ii) in default in any
material respect in the performance of any obligation, agreement or condition contained in (A) any
bond, debenture, note or any other evidence of indebtedness or (B) any agreement, indenture, lease
or other instrument (each of (A) and (B), an
“Existing Instrument”) to which the Company or
any of its subsidiaries is a party or by which any of their properties may be bound, which default
would have a Material Adverse Effect; and, to the Company’s knowledge, there does not exist any
state of facts that constitutes a default or an event of default on the part of the Company or any
of its subsidiaries as defined in such documents or that, with notice or lapse of time or both,
would constitute such a default or event of default which would have a Material Adverse Effect.
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(o) The Company and the Operating Partnership have full legal right, power and authority to
enter into and perform this Agreement and to consummate the transactions contemplated herein,
including the issuance, sale and delivery of the Shares as provided herein and the Operating
Partnership’s issuance of the Common Units to the Company. The execution and delivery of this
Agreement by the Company and the Operating Partnership and the performance by the Company and the
Operating Partnership of their obligations under this Agreement have been duly and validly
authorized by the Company and the Operating Partnership and this Agreement has been duly executed
and delivered by the Company and the Operating Partnership, and constitutes a valid and legally
binding agreement of the Company and the Operating Partnership, enforceable against the Company and
the Operating Partnership in accordance with its terms, except to the extent enforceability may be
limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting
creditors’ rights generally and (ii) equitable principles being applied at the discretion of a
court before which any proceeding may be brought, and except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws.
(p) The Amended and Restated Agreement of Limited Partnership of the Operating Partnership,
including all amendments thereto, if any (the “Partnership Agreement”), has been duly and
validly authorized, executed and delivered by or on behalf of the partners of the Operating
Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in
accordance with its terms, except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization or other laws of general applicability relating to or affecting
creditors’ rights or by general equity principles.
(q) No consent, approval, authorization, order, license, certificate, permit, registration,
designation or filing by or with any governmental agency or body is required for the execution,
delivery and performance by the Company and the Operating Partnership of their respective
obligations under this Agreement and the consummation by the Company and the Operating Partnership
of the transactions contemplated hereby, including the valid authorization, issuance, sale and
delivery of the Shares, except such as may be required by the Exchange and the securities or Blue
Sky laws of the various states in connection with the offer and sale of the Shares, all of which
will be, or have been effected, in accordance with this Agreement.
(r) Neither the issuance and sale of the Shares by the Company, the execution, delivery or
performance of this Agreement by the Company and the Operating Partnership nor the consummation by
the Company and the Operating Partnership of the transactions contemplated hereby (i) conflicts
with or will conflict with or constitutes or will constitute a breach of, or a default under, the
Company’s charter or bylaws, the Operating Partnership’s certificate of limited partnership or the
Partnership Agreement, or any Existing Instrument to which the Company or any of its subsidiaries
is a party or by which any of its or their properties may be bound, (iii) violates any statute,
law, regulation, ruling, filing, judgment, injunction, order or decree applicable to the Company or
any of its subsidiaries or any of their properties, or (iv) results in a breach of, or default or
Debt Repayment Triggering Event (as defined below) under, or results in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or requires the consent of any other party to, any Existing Instrument,
except for such conflicts, breaches, defaults, liens, charges or encumbrances that will not,
individually or in the aggregate, result in a
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Material Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any
event or condition that gives, or with the giving of notice or lapse of time would give, the holder
of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(s) No holder of any securities of the Company has rights to the registration of any
securities of the Company or other similar rights as a result of or in connection with the filing
of the Registration Statement or the consummation of the transactions contemplated hereby that have
not been satisfied or heretofore waived in writing. No person or entity has a right of
participation or first refusal with respect to the sale of the Shares by the Company.
(t) Deloitte and Touche LLP and Xxxxxxx Xxxxxxx, P.L., as applicable, who have audited the
financial statements (including the related notes thereto and supporting schedules) incorporated by
reference in the Registration Statement and the Prospectus, are and were, during the periods
covered by their reports incorporated by reference in the Registration Statement and the
Prospectus, independent registered public accountants as required by the Securities Act, the
Exchange Act and the Public Company Accounting Oversight Board
(“PCAOB”); any other public
accountants who have audited the financial statements incorporated by reference in the Registration
Statement and the Prospectus, are and were, during the periods covered by their reports
incorporated by reference in the Registration Statement and the Prospectus, independent registered
public accountants as required by the Securities Act, the Exchange Act and the PCAOB.
(u) The financial statements, together with related schedules and notes, included or
incorporated by reference in the Registration Statement and the Prospectus, present fairly the
financial condition, results of operations, cash flows and changes in financial position of the
Company on the basis stated in the Registration Statement at the respective dates or for the
respective periods to which they apply; except as disclosed therein, such statements and related
schedules and notes have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved and the other financial and statistical
information and data set forth in the Registration Statement and Prospectus is accurately presented
and prepared on a basis consistent with such financial statements and the books and records of the
Company, except for the financial statements that have not been restated for prior periods to
reflect the reclassification of assets held for sale or as discontinued operations in accordance
with Statement of Financial Accounting Standards No. 144, “Accounting for the Impairment or
Disposal of Long-Lived Assets.” No other financial statements or schedules are required by Form
S-3 or otherwise to be included in the Registration Statement or the Prospectus. The Company’s
consolidated ratios of earnings to fixed charges set forth in the Registration Statement and the
Prospectus and Exhibit 12.1 to the Registration Statement have been calculated in compliance with
Item 503(d) of Regulation S-K under the Securities Act.
(v) Except as disclosed in the Registration Statement and the Prospectus, subsequent to the
respective dates as of which such information is given in the Registration Statement and the
Prospectus, (i) neither the Company nor any of its subsidiaries has incurred any material
liabilities or obligations, indirect, direct or contingent, or entered into any transaction that is
not in the ordinary course of business, (ii) neither the Company nor any of its
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subsidiaries has sustained any material loss or interference with its business or properties
from fire, flood, windstorm, accident or other calamity, whether or not covered by insurance, (iii)
neither the Company nor any of its subsidiaries has paid or declared any dividends or other
distributions with respect to its capital stock and the Company is not in default under the terms
of any class of capital stock of the Company or any outstanding debt obligations, (iv) there has
not been any change in the authorized or outstanding capital stock of the Company or any material
change in the indebtedness of the Company (other than in the ordinary course of business) and (v)
there has not been any material adverse change, or any development involving or that may reasonably
be expected to result in a Material Adverse Effect.
(w) The Shares to be sold under this Agreement have been approved for trading and listing on
the Exchange, subject to official notice of issuance, and are registered pursuant to Section 12(b)
of the Exchange Act, and the Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Shares under the Exchange Act or delisting any such
securities from the Exchange, nor has the Company received any notification that the Commission or
the Exchange is contemplating terminating such registration or listing.
(x) The Company has not distributed and will not distribute, and has not authorized CF&Co. to
distribute, any offering material in connection with the offering and sale of the Shares to be sold
hereunder by CF&Co. as principal or agent for the Company, other than the Prospectus and any Issuer
Free Writing Prospectus reviewed and consented to by CF&Co. or
identified in Schedule 4 hereto.
(y) Other than excepted activity pursuant to Regulation M under the Exchange Act, the Company
has not taken and will not take, directly or indirectly, any action that constituted, or any action
designed to, or that might reasonably be expected to cause or result in or constitute stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Shares or for any other purpose.
(z) The Company and each of its subsidiaries have filed all tax returns required to be filed
(other than certain state or local tax returns, as to which the failure to file, individually or in
the aggregate, would not have a Material Adverse Effect), which returns are complete and correct in
all material respects, and neither the Company nor any subsidiary is in default in the payment of
any taxes that were payable pursuant to said returns or any assessments with respect thereto.
Except as disclosed in the Prospectus (as amended or supplemented), all deficiencies asserted as a
result of any federal, state, local or foreign tax audits have been paid or finally settled and no
issue has been raised in any such audit that, by application of the same or similar principles,
reasonably could be expected to result in a proposed deficiency for any other period not so
audited. There are no outstanding agreements or waivers extending the statutory period of
limitation applicable to any federal, state, local or foreign tax return for any period. On each
Settlement Date, all stock transfer and other taxes that are required to be paid in connection with
the sale of the Shares will have been fully paid by the Company and all laws imposing such taxes
will have been complied with.
(aa) Except as set forth in the Prospectus (as amended or supplemented), there are no
transactions with “affiliates” (as defined in Rule 405 of the Securities Act) or any officer,
director or security holder of the Company (whether or not an affiliate) that are required by the
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Securities Act to be disclosed in the Prospectus that have not been disclosed as required.
Additionally, no relationship, direct or indirect, exists between the Company or any of its
subsidiaries on the one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any subsidiary on the other hand that is required by the Securities Act to be
disclosed in the Prospectus that is not so disclosed.
(bb) None of the Company nor any of its subsidiaries is an “investment company”, a company
“controlled” by an “investment company” or an “affiliated person” of, or “promoter” or “principal
underwriter” for, an investment company within the meaning of the Investment Company Act of 1940,
as amended.
(cc) Each of the Company and its subsidiaries has good and valid title to all property (real
and personal) described in the Prospectus as being owned by it, free and clear of all liens,
claims, security interests or other encumbrances except (i) such as are described in the Prospectus
or (ii) such as are not materially burdensome and do not have or will not adversely affect the
Company’s or subsidiaries’ use of the property or the conduct of the business of the Company. All
property (real and personal) leased by the Company and its subsidiaries is held under valid,
subsisting and enforceable leases with only such exceptions as in the aggregate are not materially
burdensome and do not or will not adversely affect the use of the property or the conduct of the
business of the Company.
(dd) The Company and its subsidiaries have all permits, licenses, franchises, approvals,
consents and authorizations of governmental or regulatory authorities (hereinafter “permit”
or “permits”) as are necessary to own their properties and to conduct their business in the
manner described in the Prospectus, subject to such qualifications as may be set forth in the
Prospectus, except where the failure to have obtained any such permit has not had and will not have
a Material Adverse Effect; each of the Company and its subsidiaries has operated and is operating
its business in material compliance with all of its obligations with respect to each such permit
and no event has occurred that allows, or after notice or lapse of time would allow, revocation or
termination of any such permit and except where such revocation or termination would not have a
Material Adverse Effect or result in any other material impairment of the rights of any such
permit, subject in each case to such qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(ee) The Company and its subsidiaries have implemented controls and other procedures that are
designed to ensure that information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission’s rules and forms and is accumulated and communicated to
the Company’s management, including its chief executive officer and chief financial officer, or
persons performing similar functions, as appropriate to allow timely decisions regarding required
disclosure; and the Company makes and keeps books, records, and accounts which, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the assets of the
Company and its subsidiaries; and the Company and its subsidiaries maintain 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 generally accepted
accounting principles and to maintain
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accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (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, to the Company’s and the Operating Partnership’s knowledge, neither the
Company, the Operating Partnership nor any subsidiary, nor any employee or agent thereof, has made
any payment of funds of the Company, the Operating Partnership or any of the subsidiaries, as the
case may be, or received or retained any funds, and no funds of the Company, the Operating
Partnership or any of the subsidiaries, as the case may be, have been set aside to be used for any
payment, in each case in violation of any law, rule or regulation.
(ff) Neither the Company nor any of its subsidiaries, since each has been a subsidiary of the
Company, nor, to the Company’s knowledge, any employee or agent of the Company or any of its
subsidiaries, has, directly or indirectly, (i) made any unlawful contribution to any candidate for
political office, or failed to disclose fully any contribution in violation of law or (ii) made any
payment to any federal, state, local or foreign governmental official, or other person charged with
similar public or quasi-public duties, other than payments required or permitted by the laws of the
United States or any jurisdiction thereof or applicable foreign jurisdictions.
(gg) The Company and its subsidiaries are (i) in compliance with any and all applicable
federal, state, local and foreign 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 received 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 receive required permits,
licenses or other approvals or failure to comply with the terms and conditions of such permits,
licenses or other approvals would not, individually or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has been named as a “potentially
responsible party” under the Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended. Neither the Company nor any of its subsidiaries owns, leases or occupies any
property that appears on any list of hazardous sites compiled by any state or local governmental
agency.
(hh) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) that would, singly or in the
aggregate, have a Material Adverse Effect.
(ii) The Company has been organized and has operated in conformity with the requirements for
qualification and taxation as a real estate investment trust under the Internal Revenue Code of
1986, as amended (the “Code”) for its taxable years ended December 31, 2005 through
December 31, 2006, and the Company’s current and proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate investment trust under the Code for
its taxable year ending December 31, 2007 and in the future. The subsidiaries of the Company that
are partnerships have been and will continue to be treated as partnerships for
12
federal income tax purposes and not as corporations, associations taxable as corporations or
as publicly traded partnerships.
(jj) The Company and its subsidiaries own and have full right, title and interest in and to,
or has valid licenses to use, each material trade name, trademark, service xxxx, patent, copyright,
approval, trade secret and other similar rights (collectively “Intellectual Property”)
under which the Company and its subsidiaries conduct all or any material part of their business,
and none of the Company and its subsidiaries has created any lien or encumbrance on, or granted any
right or license with respect to, any such Intellectual Property except where the failure to own or
obtain a license or right to use any such Intellectual Property has not and will not have a
Material Adverse Effect; there is no claim pending against the Company or any of its subsidiaries
with respect to any Intellectual Property, and none of the Company and its subsidiaries has
received notice or otherwise become aware that any Intellectual Property that it uses or has used
in the conduct of its business infringes upon or conflicts with the rights of any third party.
Neither the Company nor any of its subsidiaries has become aware that any material Intellectual
Property that it uses or has used in the conduct of its business infringes upon or conflicts with
the rights of any third party.
(kk) Title insurance in favor of the Company or its subsidiaries, as applicable, has been
obtained with respect to each property owned by any such entity in an amount at least equal to (A)
the cost of acquisition of such property or (B) the cost of construction of such property (measured
at the time of such construction), except where the failure to maintain such title insurance would
not have a Material Adverse Effect.
(ll) Intentionally Omitted.
(mm) The Company and its subsidiaries and any “employee benefit plan” (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the
Company, its subsidiaries or their ERISA Affiliates (as defined below) are in compliance in all
material respects with ERISA and all other applicable state and federal laws. “ERISA
Affiliate” means, with respect to the Company or a subsidiary, any member of any group or
organization described in Sections 414(b), (c), (m) or (o) of the Code of which the Company or such
subsidiary is a member. No “reportable event” (as defined in ERISA) has occurred or is reasonably
expected to occur with respect to any “employee benefit plan” established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates. No “employee benefit plan” established
or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such “employee
benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
in ERISA). Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of
the Code. Each “employee benefit plan” established or maintained by the Company, its subsidiaries
or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code
is so qualified and nothing has occurred, whether by action or failure to act, that would cause the
loss of such qualification.
13
(nn) The Company and its subsidiaries have complied and will comply in all material respects
with wage and hour determinations issued by the U.S. Department of Labor under the Service Contract
Act of 1965 and the Fair Labor Standards Act in paying its employees’ salaries, fringe benefits and
other compensation for the performance of work or other duties in connection with contracts with
the U.S. government, except where the failure to do so would not have a Material Adverse Effect,
and have complied and will comply in all material respects with the requirements of the Americans
with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Civil Rights Act of
1964 (Title VII), the National Labor Relations Act, the Vietnam Era Veteran’s Readjustment Act, the
Age Discrimination in Employment Act, as amended by the Older Workers’ Benefit Protection Act, and
federal, state and local labor laws, each as amended except where the failure to comply with any
such requirements has not, and will not, have a Material Adverse Effect.
(oo) Except with respect to the non-timely filing of reports pursuant to Section 16(a) of the
Exchange Act, there is and has been no failure on the part of the Company, the Operating
Partnership and the subsidiaries and any of the officers and directors of the Company, the
Operating Partnership and any of the subsidiaries, in their capacities as such, to comply in all
material respects with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder.
(pp) Other than this Agreement, there are no contracts, agreements or understandings between
the Company or any of its subsidiaries and any person that would give rise to a valid claim against
the Company or any of its subsidiaries or CF&Co for a brokerage commission, finder’s fee or other
like payment with respect to the consummation of the transactions contemplated by this Agreement.
(qq) The Company acknowledges and agrees that CF&Co has informed the Company that CF&Co may,
to the extent permitted under the Securities Act and the Exchange Act, purchase and sell shares of
Common Stock for its own account while this Agreement is in effect; provided, that (i) no such
purchase or sales shall take place while a Placement Notice is in effect (except to the extent
CF&Co may engage in sales of Placement Shares purchased or deemed purchased from the Company as a
“riskless principal” or in a similar capacity) and (ii) the Company shall not be deemed to have
authorized or consented to any such purchases or sales by CF&Co.
(rr) Any certificate signed by an officer of the Company and delivered to CF&Co or to counsel
for CF&Co shall be deemed to be a representation and warranty by the Company and/or the Operating
Partnership, as applicable, to CF&Co as to the matters set forth therein.
(ss) The Company and the Operating Partnership acknowledge that CF&Co and, for purposes of the
opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel
to CF&Co, will rely upon the accuracy and truthfulness of the foregoing representations and hereby
consents to such reliance.
14
15
reports and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of
or under the Exchange Act. If during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is necessary to amend or
supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company
will promptly notify CF&Co to suspend the offering of Placement Shares during such period and the
Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense
of the Company) so as to correct such statement or omission or effect such compliance.
16
of Section 11 hereof, will pay all expenses incident to the performance of its
obligations hereunder, including, but not limited to, expenses relating to (i) the preparation,
printing and filing of the Registration Statement and each amendment and supplement thereto, of
each Prospectus and of each amendment and supplement thereto, (ii) the preparation, issuance and
delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities
laws in accordance with the provisions of Section 7(d) hereof, including filing fees, (iv)
the printing and delivery to CF&Co of copies of the Prospectus and any amendments or supplements
thereto, and of this Agreement, (v) the fees and expenses incurred in connection with the listing
or qualification of the Placement Shares for trading on the Exchange, and (vi) filing fees and
expenses, if any, of the Commission and the NASD Corporate Financing Department.
17
prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under
the Securities Act, which prospectus supplement will set forth, within the relevant period, the
amount of Placement Shares sold through CF&Co, the Net Proceeds to the Company and the compensation
payable by the Company to CF&Co with respect to such Placement Shares, and (ii) deliver such number
of copies of each such prospectus supplement to each exchange or market on which such sales were
effected as may be required by the rules or regulations of such exchange or market.
(o) Legal Opinion. On or prior to the date that the first Shares are sold pursuant to
the terms of this Agreement and within three (3) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(n) for which no waiver is applicable, the Company shall cause to be furnished to
CF&Co a written opinion of Bass, Xxxxx & Xxxx PLC (“Company Counsel”) and Xxxxxxx LLP (with
respect to certain matters under Maryland law), or other counsel satisfactory to CF&Co, in form and
substance satisfactory to CF&Co and its counsel, dated the date that the opinion is required to be
delivered, substantially similar to the form attached hereto as Exhibit 7(o)(1)(a) and
Exhibit 7(o)(1)(b), respectively, modified, as necessary, to relate to the Registration
Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of
such opinions for subsequent Representation Dates, counsel may furnish CF&Co
18
with a letter (a “Reliance Letter”) to the effect that CF&Co may rely on a prior
opinion delivered under this Section 7(o) to the same extent as if it were dated the date
of such letter (except that statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
19
(b) No Material Notices. None of the following events shall have occurred and be
continuing: (i) receipt by the Company or any of its subsidiaries of any request for additional
information from the Commission or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement, the response to which would require any
post-effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the
issuance by the Commission or any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose; (iii) receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Placement Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the
occurrence of any event that makes any material statement made in the Registration Statement or the
Prospectus or any material document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in the Registration
Statement, related Prospectus or such documents so that, in the
20
case of the Registration Statement, it will not contain any materially untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and, that in the case of the Prospectus, it will not contain
any materially untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f) Comfort Letter. CF&Co shall have received the Comfort Letter required to be
delivered pursuant Section 7(p) hereof on or before the date on which such delivery of such
opinion is required pursuant to Section 7(p) hereof.
21
Operating Partnership shall have furnished CF&Co with such conformed copies of such opinions,
certificates, letters and other documents as CF&Co shall have reasonably requested.
22
This indemnity agreement will be in addition to any liability that the Company or the
Operating Partnership might otherwise have.
(b) CF&Co Indemnification. CF&Co agrees to indemnify and hold harmless the Company,
its directors, each officer of the Company that signed the Registration Statement, the Operating
Partnership and each person, if any, who (i) controls the Company or the Operating Partnership
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is
controlled by or is under common control with the Company or the Operating Partnership (a
“Company Affiliate”) against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 9(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information relating to CF&Co
and furnished to the Company by CF&Co expressly for inclusion in any document as described in
clause (x) of Section 9(a) hereof or with respect to statements or omissions, or alleged
untrue statements or omissions, made in any free writing prospectus used by CF&Co and not
previously approved by the Company in accordance with Section 7(v) hereof.
(c) Procedure. Any party that proposes to assert the right to be indemnified under
this Section 9 will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 9, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such indemnifying party will
not relieve the indemnifying party from (i) any liability that it might have to any indemnified
party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense of the action, with counsel
reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except as provided below and except
for the reasonable costs of investigation subsequently incurred by the indemnified party in
connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of
such indemnified party unless (i) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the indemnifying
party, (iii) a conflict or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (iv) the indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement of
23
the action, in each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of
more than one separate firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent. No
indemnifying party shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 9 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or that may arise out of
such claim, action or proceeding.
24
amount paid or payable by an indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above in this Section 9(d)
shall be deemed to include, for the purpose of this Section 9(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim to the extent consistent with Section 9(c) hereof.
Notwithstanding the foregoing provisions of this Section 9(d), CF&Co shall not be required
to contribute any amount in excess of the commissions received by it under this Agreement and no
person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a
party to this Agreement within the meaning of the Securities Act, and any officers, directors,
partners, employees or agents of CF&Co, will have the same rights to contribution as that party,
and each officer of the Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section 9(d), will notify
any such party or parties from whom contribution may be sought, but the omission to so notify will
not relieve that party or parties from whom contribution may be sought from any other obligation it
or they may have under this Section 9(d) except to the extent that the failure to so notify
such other party materially prejudiced the substantive rights or defenses of the party from whom
contribution is sought. Except for a settlement entered into pursuant to the last sentence of
Section 9(c) hereof, no party will be liable for contribution with respect to any action or
claim settled without its written consent if such consent is required pursuant to Section
9(c) hereof.
(a) CF&Co shall have the right by giving notice as hereinafter specified at any time to
terminate this Agreement if (i) any Material Adverse Effect, or any development that could
reasonably be expected to cause a Material Adverse Effect has occurred, that, in the reasonable
judgment of CF&Co, may materially impair the ability of CF&Co to sell the Placement Shares
hereunder; (ii) the Company or the Operating Partnership shall have failed, refused or been unable
to perform any agreement on its part to be performed hereunder; provided, however, in the case of
any failure of the Company to deliver (or cause another person to deliver) any certification,
opinion, or letter required under Sections 7(n), 7(o) or 7(p) hereof,
CF&Co’s right to terminate shall not arise unless such failure to deliver (or cause to be
delivered) continues for more than thirty (30) days from the date such delivery was required; or
(iii) any other condition of CF&Co’s obligations hereunder is not fulfilled; or (iv), any
suspension or limitation of trading in the Placement Shares or in securities generally on the
Exchange shall have occurred. Any such termination shall be without liability of any party to
25
any other party except that the provisions of Section 7(h) (Expenses), Section
9 (Indemnification), Section 10 (Survival of Representations), Section 16
(Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof
shall remain in full force and effect notwithstanding such termination.
(b) The Company and the Operating Partnership shall have the right, by giving ten (10) days
notice as hereinafter specified to terminate this Agreement in their sole discretion at any time
after the date of this Agreement. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 7(h), Section 9, Section
10, Section 16 and Section 17 hereof shall remain in full force and effect
notwithstanding such termination.
(c) CF&Co shall have the right, by giving ten (10) days notice as hereinafter specified to
terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any
such termination shall be without liability of any party to any other party except that the
provisions of Section 7(h), Section 9, Section 10, Section 16 and
Section 17 hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless earlier terminated pursuant to this Section 11, this Agreement shall
automatically terminate upon the issuance and sale of all of the Placement Shares through CF&Co on
the terms and subject to the conditions set forth herein; provided that the provisions of
Section 7(h), Section 9, Section 10, Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 11(a), (b), (c), or (d) hereof or otherwise by mutual agreement of
the parties; provided, however, that any such termination by mutual agreement shall in all cases be
deemed to provide that Section 7(h), Section 9, Section 10, Section
16 and Section 17 hereof shall remain in full force and effect.
(f) Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided, however, that such termination shall not be effective until the close of
business on the date of receipt of such notice by CF&Co or the Company, as the case may be. If such
termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this Agreement.
12. Notices. All notices or other communications required or permitted to be given by
any party to any other party pursuant to the terms of this Agreement shall be in writing, unless
otherwise specified in this Agreement, and if sent to CF&Co, shall be delivered to CF&Co at Cantor
Xxxxxxxxxx & Co., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000,
Attention: ITD-Investment Banking, with copies to Xxxxxxx Xxxxxx, General Counsel, at the same
address, and DLA Piper US LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, fax no. (000)
000-0000, Attention: Xxxx X. Xxxxxxx; or if sent to the Company or the Operating Partnership, shall
be delivered to Education Realty Trust, Inc., 000 Xxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx , XX 00000
fax no. (000) 000-0000, Attention: Xxxxxxx X. Xxxxx, with a copy to Bass, Xxxxx & Xxxx PLC, 000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000, fax no. (000) 000-0000, Attention: Xxxxxx X.
XxxXxxxxx. Each party to this Agreement may change such
26
address for notices by sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication shall be deemed given (i) when
delivered personally or by verifiable facsimile transmission (with an original to follow) on or
before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on
the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt requested, postage
prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the
Exchange and commercial banks in the City of New York are open for business.
16. Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York without regard to the
principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan,
for the adjudication of any dispute hereunder or in connection with any transaction contemplated
hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
27
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
(certified or registered mail, return receipt requested) to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law.
(a) CF&Co has been retained solely to act as underwriter in connection with the sale of the
Shares that no fiduciary, advisory or agency relationship between the Company and CF&Co has been
created in respect of any of the transactions contemplated by this Agreement, irrespective of
whether CF&Co has advised or is advising the Company on other matters;
(b) Each of the Company and the Operating Partnership is capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) Each of the Company and the Operating Partnership has been advised that CF&Co and its
affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company or the Operating Partnership and that CF&Co has no obligation to disclose
such interests and transactions to the Company or the Operating Partnership by virtue of any
fiduciary, advisory or agency relationship; and
(d) Each of the Company and the Operating Partnership waives, to the fullest extent permitted
by law, any claims it may have against CF&Co, for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that CF&Co shall have no liability (whether direct or indirect) to the
Company or the Operating Partnership in respect of such a fiduciary claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company or the Operating
Partnership, including stockholders, partners, employees or creditors of the Company or the
Operating Partnership.
(a) “Applicable Time” means the time of each sale of any Shares or any securities
pursuant to this Agreement.
28
(b) “GAAP” means United States generally accepted accounting principles.
(c) “Organizational Documents” means (a) in the case of a corporation, its charter and
by-laws; (b) in the case of a limited or general partnership, its partnership certificate,
certificate of formation or similar organizational document and its partnership agreement; (c) in
the case of a limited liability company, its articles of organization, certificate of formation or
similar organizational documents and its operating agreement, limited liability company agreement,
membership agreement or other similar agreement; (d) in the case of a trust, its certificate of
trust, certificate of formation or similar organizational document and its trust agreement or other
similar agreement; and (e) in the case of any other entity, the organizational and governing
documents of such entity.
If the foregoing correctly sets forth the understanding among the Company, the Operating
Partnership and CF&Co, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company, the Operating Partnership and
CF&Co.
Very truly yours, EDUCATION REALTY TRUST, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Executive Vice President, Chief Financial Officer, Secretary and Treasurer | |||
EDUCATION REALTY OPERATING PARTNERSHIP, L.P. | ||||
By: | Education Realty OP GP, Inc., its General Partner | |||
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Vice President and Secretary |
29
ACCEPTED as of the date first-above written:
CANTOR XXXXXXXXXX & CO. |
||||
By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Sr. Managing Director - Equity Capital Market | |||
30
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From:
|
[ | ] | ||
Cc:
|
[ | ] | ||
To:
|
[ | ] | ||
Subject: | Controlled Equity Offering—Placement Notice |
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Controlled Equity
OfferingSM Sales Agreement among Education Realty Trust, Inc. (the “Company”),
Education Realty Operating Partnership, L.P. and Cantor Xxxxxxxxxx & Co. (“CF&Co”) dated
May 10, 2007 (the “Agreement”), I hereby request on behalf of the Company that CF&Co sell
up to ______ shares of the Company’s common stock, par value $0.01 per share, at a minimum market
price of $ per share.
SCHEDULE 2
CANTOR XXXXXXXXXX & CO.
Xxxx Xxxxx
|
xxxxxx@xxxxxx.xxx | |
Xxxx Xxxxxxx
|
xxxxxxxx@xxxxxx.xxx | |
Xxxxx Xxxxxxxxx
|
xxxxxxxxxx@xxxxxx.xxx |
Xxxx X. Xxxxx
|
xxxxxx@xxxxxxxx.xxx | |
Xxxxxxx X. Xxxxx
|
xxxxxx@xxxxxxxx.xxx | |
J. Xxxx Xxxxxxx
|
xxxxxxxx@xxxxxxxx.xxx |
SCHEDULE 3
Compensation
CF&Co shall be paid compensation equal to 2.25 percent (2.25%) of the gross sales price per share
from the sales of the first 500,000 Shares sold under this Agreement and 2 percent (2%) of the
gross sales price per share for any additional Shares sold thereafter pursuant to the terms of this
Agreement.
SCHEDULE 4
Free Writing Prospectus
Exhibit 7(n)
OFFICER CERTIFICATE
The undersigned, the duly qualified and elected , of EDUCATION REALTY TRUST,
INC. (“Company”), a Maryland corporation, does hereby certify in such capacity and on
behalf of the Company, pursuant to Section 7(m) of the Sales Agreement dated May 10, 2007
(the “Sales Agreement”) among the Company, Education Realty Operating Limited Partnership
(the “Operating Partnership”) and Cantor Xxxxxxxxxx & Co., that to the best of the
knowledge of the undersigned.
(i) The representations and warranties of the Company and the Operating Partnership in
Section 6 of the Sales Agreement (A) to the extent such representations and warranties are
subject to qualifications and exceptions contained therein relating to materiality or Material
Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as
if expressly made on and as of the date hereof, except for those representations and warranties
that speak solely as of a specific date and which were true and correct as of such date, and (B) to
the extent such representations and warranties are not subject to any qualifications or exceptions,
are true and correct in all material respects as of the date hereof as if made on and as of the
date hereof with the same force and effect as if expressly made on and as of the date hereof except
for those representations and warranties that speak solely as of a specific date and which were
true and correct as of such date; and
(ii) The Company and the Operating Partnership have complied with all agreements and satisfied
all conditions on their part to be performed or satisfied pursuant to the Sales Agreement at or
prior to the date hereof.
By: | ||||
Name: | ||||
Title: | ||||
Date:
Exhibit 7(o)(1)(a)
MATTERS TO BE COVERED BY OPINION OF
XXXXXXX LLP
(i) | The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the Maryland Secretary of State. The Company has the corporate power to own, lease and operate its properties and conduct its business in all material respects as described under the headings “Item 1 Business” and “Item 2 Properties” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2006. |
MATTERS TO BE COVERED BY INITIAL OPINION OF
BASS, XXXXX & XXXX PLC
(i) | The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus and meets the requirements of Item 9 of Form S-3 under the Securities Act. | ||
(ii) | The Company is duly qualified or registered to transact business in each jurisdiction set forth on Schedule 1 hereto. To the knowledge of such counsel, other than the Company’s interests in its subsidiaries disclosed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 or as disclosed in the Prospectus, the Company does not own, directly or indirectly, any capital stock or other equity securities of any corporation or any ownership interest in any limited liability company, partnership, joint venture or other association, except for its 10% ownership interest in each of the following entities: WEDR Riverside Mezz Investors V, L.L.C., WEDR Xxxxxxx Investors V, L.L.C., and APF EDR, LP. | ||
(iii) | The Operating Partnership is a limited partnership duly formed and existing under and by virtue of the laws of the State of Delaware and is in good standing with the Delaware Secretary of State. The Operating Partnership has the limited partnership power to own, lease and operate its properties and conduct its business in all material respects as described under the headings “Item 1 Business” and “Item 2 Properties” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2006. The Operating Partnership is duly qualified or registered to transact business in each jurisdiction set forth on Schedule 1 hereto. |
(iv) | The execution, delivery and performance of this Agreement by the Company and the Operating Partnership and the consummation of the transactions contemplated hereby do not conflict with, or result in any breach of, or constitute a default under (nor constitute an event that with notice, lapse of time or both would constitute a breach of or default under), (i) any Organizational Document of the Company or any of its subsidiaries, (ii) any material contract or agreement filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 (each, a “Material Contract”); provided, however, that such counsel need express no opinion (a) as to whether the execution, delivery or performance of any contract, instrument or agreement will constitute a violation of, or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of any person or entity or (b) with respect to any matter which requires mathematical calculation or any financial or accounting determination or (iii) to such counsel’s knowledge, any law, decree, judgment or order applicable to the Company (other than state and foreign securities or blue sky laws, as to which such counsel need express no opinion), except in the case of clauses (ii) and (iii) for such conflicts, breaches or defaults, which individually or in the aggregate could not be reasonably expected to have a Material Adverse Effect. | ||
(v) | Each of the Company and the Operating Partnership has the corporate or limited partnership power, as applicable, to execute and deliver this Agreement and, in the case of the Company, to issue, sell and deliver the Shares as contemplated in this Agreement. This Agreement has been duly authorized, executed and, so far as is known to such counsel, delivered by the Company and the Operating Partnership. | ||
(vi) | No approval, authorization, consent or order of, or filing with, any federal or state governmental or regulatory commission, board, body, authority or agency is required under applicable law in connection with the execution, delivery and performance of this Agreement, or the consummation of the transactions contemplated hereby, by the Company or the Operating Partnership, other than such as have been obtained or made under the Securities Act or the Exchange Act and such approvals as have been obtained, subject to official notice of issuance, in connection with the listing of the Placement Shares on the Exchange, except such as may be required by the securities or Blue Sky laws of the various states or by the National Association of Security Dealers, Inc. in connection with the offer and sale of the Additional Shares, as to which we express no opinion. | ||
(vii) | The Shares, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth therein, will be duly authorized, validly issued, fully paid and nonassessable. |
(viii) | The issuance and sale of the Placement Shares by the Company is not subject to preemptive or other similar rights arising by operation of Maryland law under the Organizational Documents of the Company or any of its subsidiaries or under any Material Contract. | ||
(ix) | To such counsel’s knowledge, except as otherwise described in the Prospectus, there are no persons with registration or other similar rights to have any securities registered pursuant to the Registration Statement. | ||
(x) | At the time the Registration Statement became effective (including each deemed effective date with respect to CF&Co pursuant to Rule 430B(f)(2)), the Registration Statement and, as of its date and the date of such opinion, the Prospectus (in each case, other than the financial statements, financial schedules and other financial and statistical data included or incorporated by reference in, or excluded from, the Registration Statement and the Prospectus, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act. | ||
(xi) | Each document incorporated by reference in the Registration Statement or the Prospectus (in each case, other than the financial statements, financial schedules and other financial and statistical data included or incorporated by reference in, or excluded from, such document, as to which such counsel need express no opinion), when it was filed with the Commission, complied as to form in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable. | ||
(xii) | The statements under the caption “Description of Capital Stock” in the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries thereof in all material respects as of the date of such statements. | ||
(xiii) | To such counsel’s knowledge, there are no actions, suits or proceedings or inquiries or investigations, pending or threatened, against the Company or to which the Company’s assets (excluding the Company’s direct or indirect interests in its subsidiaries) are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitration panel or agency that are required to be described in the Prospectus or the documents incorporated therein by reference but are not so described. | ||
(xiv) | The Company is not an “investment company” required to register under the Investment Company Act of 1940, as amended, (the “1940 Act”) or a company “controlled” by an “investment company” within the meaning of the 1940 Act. |
(xv) | The Shares to be issued and sold by the Company pursuant to the Sales Agreement, are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the Exchange. | ||
(xvi) | Commencing with its taxable year ended December 31, 2005, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code and its organization and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT. | ||
(xvii) | The Registration Statement has been declared effective by the Commission under the Securities Act. To the knowledge of such counsel, (a) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and (b) no proceedings for such purpose have been instituted or are pending or are contemplated or threatened by the Commission. Any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by such Rule 424(b). | ||
(xviii) | The statements contained in the Prospectus under the caption Federal Income Tax Considerations” insofar as such statements constitute matters of law, summaries of legal matters, or legal conclusions, have been reviewed by such counsel and fairly present and summarize, in all material respects, the matters referred to therein. |
In addition, such opinion shall also contain a statement that such counsel has participated in
conferences with officers and other representatives of the Company and representatives of the
independent accountants at which the contents of the Registration Statement* and the Prospectus*
and related matters were discussed, and although it does not pass upon, or assume any
responsibility for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and has made no independent check or verification thereof
(except to the extent referred to in paragraphs (xiii) and (xix) of its opinion to the CF&Co dated
the date hereof), on the basis of the foregoing, no facts have come to such counsel’s attention
that have caused it to believe that the Registration Statement, at its effective date, including
each deemed effective date with respect to CF&Co pursuant to Rule 430B(f)(2), contained an untrue
statement of a material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus, as of its date or
as of the date of such opinion, contained or contains 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 (except that in each case
such counsel may state that it does not express any view as to the financial statements, schedules
and other financial or statistical information derived from such financial statements or schedules
included or incorporated by reference therein).
* | Note: “Registration Statement” and “Prospectus” are defined to include documents incorporated by reference therein. |
Exhibit 7(o)(1)(b)
Matters to be covered by subsequent Company Counsel Opinions
(i) | The Registration Statement has been declared effective by the Commission under the Securities Act. To the knowledge of such counsel, (a) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and (b) no proceedings for such purpose have been instituted or are pending or are contemplated or threatened by the Commission. | ||
(ii) | At the time the Registration Statement became effective (including at each deemed effective date with respect to CF&Co pursuant to Rule 430B(f)(2)), the Registration Statement and, as of the date of the most recent Prospectus Supplement, the Prospectus (in each case, other than the financial statements, financial schedules and other financial and statistical data included or incorporated by reference in, or excluded from, the Registration Statement and the Prospectus, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act. | ||
(iii) | Each document incorporated by reference in the Registration Statement or the Prospectus (in each case, other than the financial statements, financial schedules and other financial and statistical data included or incorporated by reference in, or excluded from, such document, as to which such counsel need express no opinion), when it was filed with the Commission, complied as to form in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable. | ||
(iv) | Commencing with its taxable year ended December 31, 2005, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code and its organization and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT. |
In addition, such opinion shall also contain a statement that such counsel has participated in
conferences with officers and other representatives of the Company and representatives of the
independent accountants at which the contents of the Registration Statement* and the Prospectus*
and related matters were discussed, and although it does not pass upon, or assume any
responsibility for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and has made no independent check or verification thereof,
on the basis of the foregoing, no facts have come to such counsel’s attention that have caused it
to believe that the Registration Statement, at its effective date, including each deemed effective
date with respect to CF&Co pursuant to Rule 430B(f)(2), contained an untrue statement
of a material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus, as of its date, as
of each Applicable Time and as of the date of such opinion, contained or contains 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 (except that in each case such counsel may state that it does not express any view as to
the financial statements, schedules and other financial or statistical information derived from
such financial statements or schedules included or incorporated by reference therein).
* | Note: “Registration Statement” and “Prospectus” will be defined to include documents incorporated by reference therein. |