2,400,000 Shares HEALTHCARE REALTY TRUST INCORPORATED Common Stock UNDERWRITING AGREEMENT
EXHIBIT 1.1
2,400,000 Shares
HEALTHCARE REALTY TRUST INCORPORATED
Common Stock
September 25, 2007
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation that has elected to be taxed as a
real estate investment trust (the “Company”), proposes to issue and sell to Xxxxxx, Xxxxxxxx &
Company, Incorporated (“Stifel” or the “Underwriters”) an aggregate of 2,400,000 shares (the “Firm
Shares”) of the common stock, par value $0.01 per share, of the Company (“Common Stock”). The
Company also proposes to sell to you, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, at your option, up to an additional 360,000 shares of
Common Stock (the “Option Shares”). The Firm Shares and the Option Shares are hereinafter referred
to collectively as the “Shares”.
The Company confirms as follows its agreement with Stifel.
1. Purchase and Sale. Subject to the terms and conditions herein set forth and on the basis
of the representations, warranties and agreements herein contained, (a) the Company agrees to sell
to the Underwriters, and the Underwriters agree to purchase from the Company, at a purchase price
per share of $24.85 (the “Purchase Price”), the Firm Shares and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Option Shares as provided below, the
Company agrees to sell to the Underwriters, and the Underwriters agree to purchase from the
Company, at the Purchase Price, the number of Option Shares (to be adjusted by you so as to
eliminate fractional shares) for which such election shall have been exercised.
The Company hereby grants to the Underwriters the right to purchase at its election up to
360,000 Option Shares, at the Purchase Price, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares. The Underwriters may exercise its option to acquire
Option Shares in whole or in part from time to time only by written notice to the Company, given
within a period of 30 calendar days after the date of this Agreement (or, if such 30th
day shall be a Saturday or Sunday or a holiday, on the next day thereafter when the New York Stock
Exchange (“NYSE”) is open for trading) and setting forth the aggregate number of Option Shares to
be purchased and the date on which such Option Shares are to be delivered, as determined by you but
in no event earlier than the Closing Date (as defined herein) or, unless
you and the Company otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
2. Terms of Offering. It is understood that Stifel proposes to offer the Firm Shares for sale
to the public upon the terms and conditions set forth in the Prospectus (as defined herein).
3. Payment and Delivery. The Company will deliver the Firm Shares to Stifel, against payment
of the aggregate purchase price therefor in Federal (same day) funds by official bank check or
checks or wire transfer drawn to the order of the Company at the office of Stifel (or such other
place as you may specify), at 10:00 A.M., Baltimore time, on September 28, 2007, or at such other
time not later than seven full business days thereafter as Stifel and the Company determine, such
time being herein referred to as the “Closing Date”. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, as amended (the “1934 Act”), the Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment of funds and
delivery of securities for all the Firm Shares. The certificates for the Firm Shares so to be
delivered will be in definitive form, in such denominations and registered in such names as Stifel
requests and will be made available for checking and packaging at the above office of Stifel (or
such other place as you may specify) at least 24 hours prior to the Closing Date.
Each time for the delivery of and payment for the Option Shares, being herein referred to as
an “Option Closing Date”, which may be the Closing Date, shall be determined by Stifel as provided
above. The Company will deliver the Option Shares with respect to which the options shall have
been exercised and are being purchased on each Option Closing Date to Stifel, against payment of
the purchase price therefor in Federal (same day) funds by official bank check or checks or wire
transfer drawn to the order of the Company at the above office of Stifel (or such other place as
you may specify), at 10:00 A.M., Baltimore time on the applicable Option Closing Date. The
certificates for the Option Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as Stifel requests and will be made available for
checking and packaging at the above office of Stifel (or such other place as you may specify) at
least 24 hours prior to such Option Closing Date.
4. Representations, Warranties and Agreements of the Company. (a) The Company represents and
warrants to, and agrees with, the Underwriters that, as of the date hereof and as of the Closing
Date and each Option Closing Date, if any:
(i) The Company has carefully prepared, pursuant to and in conformity with the
requirements of the Securities Act of 1933, as amended (the “1933 Act”), and the rules and
regulations promulgated thereunder (the “1933 Act Rules and Regulations”) by the Securities
and Exchange Commission (the “SEC”), and has filed with the SEC a registration statement on
Form S-3 (File No. 333-120595) which has been declared effective, including a base
prospectus relating to common stock, common stock warrants, preferred stock and debt
securities of the Company (the “Base Prospectus”), for registration of the Shares under the
1933 Act and the offering thereof from time to time in accordance with Rule 415 of the 1933
Act Rules and Regulations. At the time of filing the Registration Statement the Company was
not and is not an “ineligible issuer,” as defined under Rule 405 under the 1933 Act. The
Company and the offering of the Shares in the registration statement meet the requirements for use of Form S-3 under the 1933 Act.
At the time the Company or any person acting on its behalf (within the meaning, for this
sentence only, of Rule 163(c) under the 0000 Xxx) made any offer relating to the
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Shares in reliance on the exemption in Rule 163, and at the Applicable Time (as defined below), the
Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405
under the 1933 Act. The documents incorporated by reference in the Base Prospectus pursuant
to Item 12 of Form S-3 under the 1933 Act, at the time they were filed with the SEC,
complied in all material respects with the requirements of the 1934 Act, and the rules and
regulations promulgated thereunder (the “1934 Act Rules and Regulations”) and none of such
documents, when they were filed with the SEC, contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Pricing Prospectus or Prospectus (each as
defined below), when such documents were or are filed with SEC, conformed or will conform in
all material respects to the requirements of the 1934 Act and the 1934 Act Rules and
Regulations and will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Such registration statement (and any further
registration statements that may be filed by the Company for the purpose of registering
additional shares of Common Stock and in connection with which this Agreement is included or
incorporated therein by reference as an exhibit) including all documents incorporated
therein by reference, as from time to time amended or supplemented by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, are referred to herein as the
“Registration Statement.” The term “Registration Statement” also means the registration
statement as amended by a post-effective amendment and includes any abbreviated registration
statement prepared and filed with the SEC in accordance with Rule 462(b) under the 1933 Act
(an “Abbreviated Registration Statement”). The time at which the Registration Statement
became effective is referred to herein as the “Effective Date.” The Company proposes to
prepare and file with the SEC, pursuant to Rule 424 under the 1933 Act, a supplement to the
Base Prospectus (the “Prospectus Supplement”) included in the Registration Statement that
will describe the issuances of the Shares pursuant to this Agreement, the sale and plan of
distribution of the Shares and additional information concerning the Company and its
business. The Company may, from time to time, prepare and file with the SEC pursuant to
Rule 430, 430A or 430B under the 1933 Act Rules and Regulations a preliminary Prospectus
Supplement (each a “Preliminary Prospectus”) containing the Base Prospectus included as part
of the Registration Statement, as supplemented by a Preliminary Prospectus, and including
the documents incorporated in such Preliminary Prospectus by reference, relating to the
Shares. The Preliminary Prospectus relating to the Shares that was included in the
Registration Statement immediately prior to the Applicable Time (as defined below) is
hereinafter called the “Pricing Prospectus;” such final prospectus, including the final
prospectus supplement relating to the Shares, in the form first filed pursuant to Rule
424(b) under the 1933 Act, is hereinafter called the “Prospectus;” and any “issuer free
writing prospectus” as defined in Rule 433 under the 1933 Act relating to the Shares is
hereinafter called an “Issuer Free Writing Prospectus;” and all references to the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus,
any Issuer Free Writing Prospectus or
any amendment or supplement to any of the foregoing shall be deemed to include the
copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“XXXXX”).
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Each Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing Prospectus and the
Prospectus filed as part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed
in all material respects with the requirements of the 1933 Act and the 1933 Act Rules and
Regulations and each Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing
Prospectus and the Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
For the purposes of this Agreement, the “Applicable Time” is 4:30 p.m. (Eastern time) on the
date of this Agreement; the Pricing Prospectus as supplemented by the Issuer Free Writing
Prospectuses and other documents listed in Annex A hereto, taken together (collectively, the
“Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on Annex B hereto does not
conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall
not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance
upon and in strict conformity with information furnished in writing to the Company by Stifel
expressly for use therein.
(ii) Neither the SEC nor any state or other jurisdiction or other regulatory body has
issued, and neither is, to the knowledge of the Company, threatening to issue, any stop
order under the 1933 Act or other order suspending the effectiveness of the Registration
Statement (as amended or supplemented) or preventing or suspending the use of any Prospectus
Supplement, Preliminary Prospectus, Issuer Free Writing Prospectus or Prospectus or
suspending the qualification or registration of the Shares for offering or sale in any
jurisdiction, nor instituted or, to the knowledge of the Company, threatened to institute
proceedings for any such purpose. The Prospectus and each Prospectus Supplement,
Preliminary Prospectus or Issuer Free Writing Prospectus, as of the applicable date of
issue, and the Registration Statement and any amendments thereto as of the applicable
effective date, contain or will contain, as the case may be, all statements which are
required to be stated therein by, and in all material respects conform or will conform, as
the case may be, to the requirements of, the 1933 Act and the 1933 Act Rules and
Regulations. Neither the Registration Statement nor any amendment thereto, as of the
applicable effective date, contains or will contain, as the case may be, any untrue
statement of a material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements therein, not misleading,
and neither the Prospectus, nor any Prospectus Supplement, Preliminary Prospectus or Issuer
Free Writing Prospectus, at the applicable date of issue, contains or will contain, as the
case may be, any untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the statements therein, in
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the light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to information contained in
or omitted from the Registration Statement, any Prospectus Supplement, Preliminary
Prospectus, Issuer Free Writing Prospectus or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written information furnished to the
Company relating to the Underwriters by or on behalf of the Underwriters expressly for use
in the preparation thereof (as provided in this Agreement). There is no contract or
document required to be described in the Registration Statement, the Pricing Prospectus or
the Prospectus or to be filed as an exhibit to the Registration Statement that is not
described or filed as required. Any future documents incorporated by reference so filed,
when they are filed, will comply in all material respects with the requirements of the 1934
Act and the 1934 Act Rules and Regulations; no such incorporated document contained or will
contain any untrue statement of a material fact or omit or will omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; and, when read together and with the other information in the Pricing Prospectus
or the Prospectus, at the time the Registration Statement became effective, at the
Applicable Time and at the Closing Date, each such incorporated document did not or will
not, as the case may be, 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.
(iii) This Agreement has been duly authorized, executed and delivered by the Company
and this Agreement constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally and by general
principles of equity (the “Exceptions”).
(iv) The Company and its “subsidiaries” (as defined in Section 4(a)(vii) hereof) have
been duly incorporated or organized and are validly existing as corporations or
organizations in good standing under the laws of the states or other jurisdictions in which
they are incorporated or organized, with full power and authority (corporate and other) to
own, lease and operate their properties and conduct their businesses as described in the
Pricing Prospectus and the Prospectus and, with respect to the Company, to execute and
deliver, and perform the Company’s obligations under, this Agreement; the Company and its
subsidiaries are duly qualified to do business as foreign corporations or organizations in
good standing in each state or other jurisdiction in which their ownership or leasing of
property or conduct of business legally requires such qualification, except where the
failure to be so qualified, individually or in the aggregate, would not have a Material
Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse
effect on the condition (financial or other), net worth, business, affairs,
management, prospects, results of operations or cash flow of the Company and its
subsidiaries, taken as a whole.
(v) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the Pricing
Prospectus and the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
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from any labor
dispute or court or governmental action, order or decree otherwise than as set forth in the
Pricing Prospectus and the Prospectus or as disclosed in writing to the Underwriters prior
to execution and delivery of this Agreement and, since the respective dates as of which
information is given in the Registration Statement and the Pricing Prospectus and the
Prospectus, there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries which would give rise to a Material Adverse Effect, or
any development involving a prospective Material Adverse Effect, in or affecting the general
affairs, management, financial position, stockholders’ equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as set forth in the
Pricing Prospectus and the Prospectus.
(vi) The issuance and sale of the Shares pursuant to this Agreement and the execution,
delivery and performance by the Company of this Agreement, and the consummation of the
transactions herein or therein contemplated, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any properties or assets
of the Company or any of its subsidiaries under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party, or by which the Company or any of its subsidiaries is bound, or to
which any of the properties or assets of the Company or any of its subsidiaries is subject,
or violate any statute, rule, regulation or other law, or any order or judgment, of any
court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except to such extent as, individually or in the
aggregate, does not have a Material Adverse Effect, nor will such action result in any
violation of the provisions of the Company’s articles of incorporation or bylaws; and no
consent, approval, authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the execution, delivery and performance
of this Agreement, the issuance and sale of the Shares pursuant to this Agreement or the
consummation of the transactions contemplated hereby, except such as have been, or will be
prior to the Closing Date, obtained under the 1933 Act or as may be required by the NYSE and
such consents, approvals, authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the purchase and distribution of
the Shares by the Underwriters.
(vii) The Company has duly and validly authorized capital stock as set forth in the
Pricing Prospectus and the Prospectus; all outstanding shares of Common Stock of the Company
conform, or when issued the Shares will conform, to the description thereof in the Pricing
Prospectus and the Prospectus and have been, or, when issued and paid for in the manner
described herein will be, duly authorized, validly issued, fully paid and non-assessable;
and the issuance of the Shares to be purchased from the Company hereunder is not subject to
preemptive or other similar rights, or any restriction upon the voting or
transfer thereof (except for those rights and restrictions relating primarily to the
Company’s status as a REIT as described in Section 4(a)(xxiii) hereof) pursuant to
applicable law or the Company’s articles of incorporation, by-laws or governing documents or
any agreement to which the Company or any of its subsidiaries is a party or by which any of
them may be bound. All corporate action required to be taken by the Company for the
authorization, issuance and sale of the Shares has been duly and validly taken prior to the
date of this Agreement. Except as disclosed in the Pricing Prospectus
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and the Prospectus,
there are no outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or rights related to or entitling any person to purchase or
otherwise to acquire any shares of, or any security convertible into or exchangeable or
exercisable for, the capital stock of, or other ownership interest in, the Company. The
Company has no subsidiaries or affiliates (collectively, “subsidiaries”) other than those
identified in Exhibit 21 to the Company’s last filed Annual Report on Form 10-K or as
otherwise disclosed in writing to the Underwriters (“Exhibit 21”). The Company has no
Material Subsidiaries (as defined herein) other than as set forth on Annex E. The Company
owns all of the outstanding capital stock of or other equity interests in each such
subsidiary except as set forth in Exhibit 21 or as otherwise disclosed in writing to the
Underwriters. Other than the subsidiaries referred to above, the Company does not own,
directly or indirectly, any shares of stock or any other equity or long-term debt of any
other corporation or have any direct or indirect equity interest or ownership of long-term
debt in any firm, partnership, joint venture, limited liability company, association or
other entity, except as described in the Pricing Prospectus and the Prospectus. The
outstanding shares of capital stock of or other equity interests in the Company’s
subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable
and are owned, except as otherwise set forth in Exhibit 21, by the Company free and clear of
any mortgage, pledge, lien, encumbrance, charge or adverse claim and are not the subject of
any agreement or understanding with any person and were not issued in violation of any
preemptive or similar rights; and there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or instruments related to or
entitling any person to purchase or otherwise acquire any shares of, or any security
convertible into or exchangeable or exercisable for, the capital stock of, or other
ownership interest in any of the subsidiaries.
(viii) The statements set forth in the Pricing Prospectus, as of the Applicable Time,
and the Prospectus, as of its date of issue, describing the Shares and the Common Stock and
this Agreement, insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material respects.
(ix) Each of the Company and its subsidiaries is in possession of and is operating in
compliance with all franchises, grants, authorizations, licenses, certificates, permits,
easements, consents, orders and approvals (“Permits”) from all state, federal, foreign and
other regulatory authorities, and has satisfied the requirements imposed by regulatory
bodies, administrative agencies or other governmental bodies, agencies or officials, that
are required for the Company and its subsidiaries lawfully to own, lease and operate their
properties and conduct their businesses as described in the Pricing Prospectus and the
Prospectus, in each case with such exceptions, individually or in the aggregate, as would
not have a Material Adverse Effect; and, each of the Company and its
subsidiaries is conducting its business in compliance with all of the laws, rules and
regulations of each jurisdiction in which it conducts its business, in each case with such
exceptions, individually or in the aggregate, as would not have a Material Adverse Effect;
each of the Company and its subsidiaries has filed all notices, reports, documents or other
information (“Notices”) required to be filed under applicable laws, rules and regulations,
in each case, with such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; and, except as otherwise specifically described in the Pricing
Prospectus and the Prospectus, neither the Company nor any of its subsidiaries
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has received
any notification from any court or governmental body, authority or agency, relating to the
revocation or modification of any such Permit or, to the effect that any additional
authorization, approval, order, consent, license, certificate, permit, registration or
qualification (“Approvals”) from such regulatory authority is needed to be obtained by any
of them, in any case where it could be reasonably expected that obtaining such Approvals or
the failure to obtain such Approvals, individually or in the aggregate, would have a
Material Adverse Effect.
(x) All United States federal income tax returns of the Company and its subsidiaries
required by law to be filed have been filed and all taxes shown by such returns or otherwise
assessed, which are due and payable, have been paid, except assessments against which
appeals have been or will be promptly taken and as to which adequate reserves have been
provided. The Company and its subsidiaries have filed all other tax returns that are
required to have been filed by them pursuant to applicable foreign, state, local or other
law, except insofar as the failure to file such returns, individually or in the aggregate,
would not result in a Material Adverse Effect, and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any Subsidiary except for
such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been provided. The charges, accruals and reserves on the books of the Company and its
subsidiaries in respect of any income and corporation tax liability for any years not
finally determined are adequate to meet any assessments or re-assessments for additional
income tax for any years not finally determined;
(xi) The Company and its subsidiaries own or possess, or can acquire on reasonable
terms, all licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names, patents and patent rights
(collectively “Intellectual Property”) material to carrying on their businesses as described
in the Pricing Prospectus and the Prospectus, and neither the Company nor any of its
subsidiaries has received any correspondence relating to any Intellectual Property or notice
of infringement of or conflict with asserted rights of others with respect to any
Intellectual Property which would render any Intellectual Property invalid or inadequate to
protect the interest of the Company and its subsidiaries and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would have or may reasonably be expected to have a
Material Adverse Effect;
(xii) Except in each case such as would not have a Material Adverse Effect, the Company
and its subsidiaries have good and marketable title in fee simple or valid, enforceable
leasehold title to all items of real property and good and marketable title to all personal
property owned by them or disclosed as owned by them in the Pricing Prospectus and the
Prospectus, in each case free and clear of all liens, encumbrances, restrictions and defects
except such as are described in the Pricing Prospectus and the Prospectus or do not
materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property; and any property held under lease or sublease by the
Company or any of its subsidiaries is held under valid, duly
8
authorized, subsisting and
enforceable leases or subleases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property by the Company and its
subsidiaries; the Company and its subsidiaries have title insurance on all real properties
described in the Pricing Prospectus and the Prospectus as having been financed by them
pursuant to a mortgage loan in an amount at least equal to the aggregate principal amount of
each such mortgage loan or in an amount at least equal to the aggregate acquisition price
paid by the Company or its subsidiaries for such properties and the cost of construction of
the improvements located on such properties; and neither the Company nor any of its
subsidiaries has any notice or knowledge of any material claim of any sort which has been,
or may be, asserted by anyone adverse to the Company’s or any of its subsidiaries rights as
lessee or sublessee under any lease or sublease described above, or affecting or questioning
the Company’s or any of its subsidiaries’ rights to the continued possession of the leased
or subleased premises under any such lease or sublease in conflict with the terms thereof.
To the knowledge of the Company, no lessee of any portion of any of the properties described
in the Pricing Prospectus and the Prospectus is in default under its respective lease 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 such lease, except such defaults that would, individually or
in the aggregate, not have a Material Adverse Effect.
(xiii) No labor disturbance exists with the employees of the Company or any of its
subsidiaries or, to the Company’s knowledge, is imminent which, individually or in the
aggregate, would have a Material Adverse Effect. None of the employees of the Company or
any of its subsidiaries is represented by a union and, to the knowledge of the Company and
its subsidiaries, no union organizing activities are taking place. Neither the Company nor
any of its subsidiaries has violated any federal, state or local law or foreign law relating
to discrimination in hiring, promotion or pay of employees, nor any applicable wage or hour
laws, or the rules and regulations thereunder, or analogous foreign laws and regulations,
which might, individually or in the aggregate, result in a Material Adverse Effect.
(xiv) The Company and its subsidiaries are in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security Act of 1974,
as amended, including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company and its subsidiaries would have any liability; the
Company and its subsidiaries have not incurred and do not expect to incur liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”); and each “pension plan” for which the Company or
any of its subsidiaries would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects, and, to the Company’s
knowledge, nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(xv) The Company and its subsidiaries maintain insurance of the types and in the
amounts generally deemed adequate for its business, including, but not limited to,
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directors’ and officers’ insurance, insurance covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which insurance is in full
force and effect. Neither the Company nor any of its subsidiaries has been refused any
insurance coverage sought or applied for, and the Company has no reason to believe that it
and its subsidiaries will not be able to renew their existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material Adverse Effect.
(xvi) Neither the Company nor any of its subsidiaries is, or with the giving of notice
or lapse of time or both would be, in default or violation with respect to its articles of
incorporation or by-laws. Neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in default in the performance or
observance of any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the properties or assets of the Company or any
of its subsidiaries is subject, or in violation of any statutes, laws, ordinances or
governmental rules or regulations or any orders or decrees to which it is subject,
including, without limitation, Section 13 of the 1934 Act, which default or violation,
individually or in the aggregate, would have a Material Adverse Effect. Neither the Company
nor any of its subsidiaries has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political office, or failed fully to
disclose any contribution in violation of law, or (B) made any payment to any state, federal
or foreign government official, or other person charged with similar public or quasi-public
duty (other than any such payment required or permitted by applicable law).
(xvii) Other than as set forth in the Pricing Prospectus and the Prospectus, there are
no legal or governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is the
subject, or to the Company’s knowledge, any person from whom the Company or any of its
subsidiaries acquired any of such property, or any lessee, sublessee or operator of any such
property or portion thereof is a party, that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect
or which would materially and adversely affect the consummation of the transactions
contemplated hereby or which is required to be disclosed in the Registration Statement or
the Pricing Prospectus or the Prospectus; to the
Company’s knowledge, no such proceedings are threatened or contemplated. Neither the
Company nor any of its subsidiaries has, nor, to the Company’s knowledge, any seller,
lessee, sublessee or operator of any such properties, or portion thereof or any previous
owner thereof has, received from any governmental authority notice of any material violation
of any municipal, state or federal law, rule or regulation (including without limitation any
such law, rule or regulation applicable to the health care industry) and including foreign,
federal, state or local law or regulation relating to human health or safety or the
environment or hazardous substances or materials concerning such properties, or any part
thereof which has heretofore been cured, and neither the Company
10
nor any of its subsidiaries
knows of any such violation, or any factual basis, occurrence or circumstance that would
give rise to a claim under or pursuant to any such laws, rules or regulations which would,
in any of the cases set forth in the sentence, individually or in the aggregate, have a
Material Adverse Effect. Except as described in the Pricing Prospectus and the Prospectus,
none of the property owned or leased by the Company or any of its subsidiaries is, to the
knowledge of the Company, contaminated with any waste or hazardous substances, and neither
the Company nor any of its subsidiaries may be deemed an “owner or operator” of a “facility”
or “vessel” which owns, possesses, transports, generates or disposes of a “hazardous
substance” as those terms are defined in §9601 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. §9601 et seq., except to the
extent that it would not have a Material Adverse Effect or a material adverse effect on any
Material Subsidiary. Neither the Company nor any of its subsidiaries, nor, to the Company’s
knowledge, any seller, lessee, sublessee or operator of any such property, or portion
thereof has, received from any governmental authority any written notice of any condemnation
of or zoning change affecting such properties, or any part thereof that would have a
Material Adverse Effect, or a material adverse effect on any Material Subsidiary and the
Company does not know of any such condemnation or zoning change which is threatened and
which if consummated would have a Material Adverse Effect, or a material adverse effect on
any Material Subsidiary. No contract or document of a character required to be described in
the Registration Statement, the Pricing Prospectus, the Prospectus or any document
incorporated by reference therein or to be filed as an exhibit to the Registration Statement
or any document incorporated therein is not so described, filed or incorporated by reference
as required.
(xviii) The Company is not and, after giving effect to the offering and sale of the
Shares, will not be an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as amended (the
“1940 Act”).
(xix) The accounting firm which has audited the financial statements filed with or
incorporated by reference in and as a part of the Registration Statement, is an independent
public accounting firm within the meaning of the 1933 Act and the 1933 Act Rules and
Regulations. The consolidated financial statements and schedules of the Company, including
the notes thereto, filed with or incorporated by reference and as a part of the Registration
Statement or the Pricing Prospectus or the Prospectus, are accurate in all material respects
and present fairly in all material respects the financial condition of the Company and its
subsidiaries as of the respective dates thereof and the
consolidated results of operations and changes in financial position and consolidated
statements of cash flow for the respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent basis throughout the
periods involved except as otherwise disclosed therein. All adjustments necessary for a
fair presentation of results for such periods have been made. The selected financial data
included or incorporated by reference in the Registration Statement, Pricing Prospectus and
Prospectus present fairly in all material respects the information shown therein and have
been compiled on a basis consistent with that of the audited financial statements. Any
operating or other statistical data included or incorporated by reference in the
Registration Statement, Pricing Prospectus and Prospectus comply in all material respects
11
with the 1933 Act and the 1933 Act Rules and Regulations and present fairly in all material
respects the information shown therein. The pro forma financial statements and the related
notes thereto included in or incorporated by reference in the Registration Statement,
Pricing Prospectus and Prospectus present fairly, in all material respects, the information
shown therein, have been prepared in accordance with the SEC’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 to give effect to the transactions and
circumstances referred to therein.
(xx) Except as disclosed in the Pricing Prospectus and in the Prospectus, no holder of
any security of the Company has any right to require registration of shares of Common Stock
or any other security of the Company because of the filing of the Registration Statement or
the consummation of the transactions contemplated hereby. No person has the right,
contractual or otherwise, to cause the Company to permit such person to underwrite the sale
of any shares of the Common Stock or the Shares. Except for 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, its subsidiaries or
any Underwriter for a brokerage commission, finder’s fee or like payment in connection with
the issuance, purchase and sale of the Shares pursuant to this Agreement.
(xxi) The Company has not distributed and, prior to the later to occur of (i) the
Closing Date or the Option Closing Date, if any, relating to the issuance of the Shares and
(ii) completion of the distribution of the Shares, will not distribute any offering material
in connection with the offering and sale of the Shares other than the Registration
Statement, the Prospectus Supplement, Preliminary Prospectus, Issuer Free Writing Prospectus
or the Prospectus relating to such issuance.
(xxii) Except for the “lock-up” agreements to be executed by the Company’s directors
and the executive officers set forth on Annex G hereto, the Company has not taken and will
not take, directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of the Company’s
Common Stock, and the Company is not aware of any such action taken or to be taken by
affiliates of the Company.
(xxiii) (i) The Company is organized and operates in conformity with the requirements
for qualification as a real estate investment trust (“REIT”) under Sections 856 and 857 of
the Code, (ii) the Company qualified as a REIT for all taxable years prior to 2007, and
(iii) the Company’s current method of operation will enable it to meet the requirements for
taxation as a REIT under the Code for 2007, and the Company intends to qualify as a REIT for
all subsequent years.
(xxiv) Except as described in the Pricing Prospectus and the Prospectus, neither the
Company nor any of its subsidiaries has either given or received any communication regarding
the termination of, or intent not to renew, any of the leasehold interests of lessees in the
Company’s and its subsidiaries’ properties held under lease, any property operating
agreement or any other agreement between the Company or its subsidiaries and
12
the operators of its properties or facilities, and no such termination or non-renewal has been threatened
by the Company, any of its subsidiaries or, to the Company’s knowledge, any other party to
any such lease, other than as would not have, individually or in the aggregate, a Material
Adverse Effect.
(xxv) Except for the subsidiaries (“Material Subsidiaries”) identified on Annex E to
this Agreement, none of the subsidiaries of the Company individually consist of more than
1.5%, or in the aggregate consist of more than 10%, of the Company’s (i) net assets, or (ii)
revenues for the most recently ended quarterly period.
(xxvi) There is and has been no failure on the part of the Company and, to the
Company’s knowledge, any of the Company’s directors or officers, in their capacities as
such, to comply with any provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (collectively, the “Sarbanes Oxley Act”),
including Section 402 relating to loans and Sections 302 and 906 related to certifications.
(xxix) Neither the Company nor any subsidiary nor, to the knowledge of the Company, any
director, trustee, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing any activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(xxx) The statistical and market and industry-related data included in the Pricing
Prospectus and the Prospectus are based on or derived from sources which the Company
believes to be reliable and accurate or represent the Company’s good faith estimates that
are made on the basis of data derived from such sources, and the Company has obtained the
written consent to the use of such data from sources to the extent required.
(xxxi) Since the date of the latest audited financial statements included in the
Pricing Prospectus, (a) the Company has not been advised of (1) any significant deficiencies
in the design or operation of internal controls that could adversely affect the ability of
the Company and each of its Subsidiaries to record, process, summarize and
report financial data, or any material weaknesses in internal controls (except for any
deficiencies related to the procedures for the recording of dividends as described under
Item 4 of Part I of the Company’s Quarterly Report on Form 10-Q for the period ended on
March 31, 2007, which deficiencies have been remediated) and (2) any fraud, whether or not
material, that involves management or other employees who have a significant role in the
internal controls of the Company and each of its Subsidiaries, and (b) since that date,
there has been no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
13
(xxxii) The Company maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15 (e) of the 0000 Xxx) that comply with the requirements of the 1934
Act; such disclosure controls and procedures are effective.
(xxxv) Neither the Company nor any of its Subsidiaries, or any director, officer,
agent, employee or other person associated with or acting on behalf of the Company or any of
its Subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds, (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, or (iv) made any bribe, unlawful rebate, payoff, influence payment,
kickback or other unlawful payment.
(b) Any certificate signed by any officer of the Company and delivered to the Underwriters or
to counsel for the Underwriters shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
5. Additional Covenants. The Company covenants and agrees with each of the Underwriters as
follows:
(a) The Company will timely transmit copies of the Pricing Prospectus and the Prospectus and
any amendments or supplements thereto and any Issuer Free Writing Prospectus, as applicable, to the
SEC for filing pursuant to Rule 424(b) or Rule 433(d), as applicable, of the 1933 Act Rules and
Regulations.
(b) The Company will deliver to the Underwriters as soon as practicable after the date of this
Agreement as many copies of the Preliminary Prospectus and the Prospectus (including all documents
incorporated by reference therein) as the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act; the Company will promptly advise the Underwriters of any request of
the SEC for amendment of the Registration Statement or for supplement to the Prospectus or for any
additional information, and of the issuance by the SEC or any state or other jurisdiction or other
regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of
the Registration Statement (as amended or supplemented) or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the qualification or registration of the
Shares for offering or sale in any jurisdiction, and of the institution or threat of any
proceedings therefor, of which the Company shall have received notice or otherwise have knowledge
prior to the completion of the distribution of the Shares; and
the Company will use its best efforts to prevent the issuance of any such stop order or other order
and, if issued, to secure the prompt removal thereof.
(c) The Company will not file any amendment or supplement to the Registration Statement, the
Pricing Prospectus, Prospectus (or any other prospectus relating to the Shares filed pursuant to
Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed
pursuant to such Rule 424(b)) or any Issuer Free Writing Prospectus, and will not file any document
under the 1934 Act before the termination of the offering of the Shares by the Underwriters if the
document would be deemed to be incorporated by reference into the Registration Statement or the
Pricing Prospectus or the Prospectus, of which the Underwriters shall not previously have been
advised and furnished with a copy or to which the Underwriters
14
shall have reasonably objected or
which is not in compliance with the 1933 Act Rules and Regulations; and the Company will promptly
notify you after it shall have received notice thereof of the time when any amendment to the
Registration Statement becomes effective or when any supplement to the Pricing Prospectus,
Prospectus or Issuer Free Writing Prospectus has been filed.
(d) During the period when the Prospectus relating to any of the Shares is required to be
delivered under the 1933 Act by any Underwriter or dealer (or in lieu thereof, the notice referred
to in Rule 173(a) of the 1933 Act), the Company will comply, at its own expense, with all
requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter
amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so
far as necessary to permit the continuance of sales of or dealing in the Shares during such period
in accordance with the provisions hereof and as contemplated by the Prospectus.
(e) If, during the period when the Prospectus relating to any of the Shares is required to be
delivered under the 1933 Act by any Underwriter or dealer(or in lieu thereof, the notice referred
to in Rule 173(a) of the 1933 Act), (i) any event relating to or affecting the Company or of which
the Company shall be advised in writing by the Underwriters shall occur as a result of which, in
the opinion of the Company or the Underwriters, the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit 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 or (ii) it shall be necessary to amend or supplement the Registration Statement or the
Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the
1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the
SEC, and furnish to the Underwriters a reasonable number of copies of, such amendment or supplement
or other filing that will correct such statement or omission or effect such compliance.
(f) From time to time as requested by the Underwriters and during the period when the
Prospectus relating to the Shares is required to be delivered under the 1933 Act by any Underwriter
or dealer(or in lieu thereof, the notice referred to in Rule 173(a) of the 1933 Act), the Company
will furnish such proper information as may be lawfully required and otherwise cooperate in
qualifying the Shares for offer and sale under the securities or blue sky laws of such
jurisdictions as the Underwriters may reasonably designate and will file and make in each year such
statements or reports as are or may be reasonably required by the laws of such jurisdictions;
provided, however, that the Company shall not be required to qualify as a foreign corporation or
shall be required to qualify as a dealer in securities or to file a general consent to service of
process under the laws of any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and
Regulations, the Company will make generally available to the holders of the Shares, as soon as
practicable, an earnings statement (which need not be audited) in reasonable detail covering the 12
months beginning not later than the first day of the month next succeeding the month in which
occurred the effective date (within the meaning of Rule 158) of this Agreement.
(h) The Company shall file promptly all documents required to be filed with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the 0000 Xxx. The Company shall furnish to its security
holders annual reports containing financial statements audited by independent public
15
accountants and quarterly reports containing financial statements and financial information which may be
unaudited. The Company will deliver to the Underwriters at its principal executive office a
reasonable number of copies of annual reports, quarterly reports, current reports and copies of all
other documents, reports and information furnished by the Company to its shareholders or filed with
any securities exchange or market pursuant to the requirements of such exchange or market or with
the SEC pursuant to the 1933 Act or the 0000 Xxx. The Company shall deliver to the Underwriters
similar reports with respect to any significant subsidiaries, as that term is defined in the 1933
Act Rules and Regulations, which are not consolidated in the Company’s financial statements. Any
report, document or other information required to be furnished under this paragraph (h) shall be
furnished as soon as practicable after such report, document or information becomes available.
(i) During the period beginning from the date of this Agreement and continuing to and through
the Closing Date (and, if applicable, the Option Closing Date), the Company will not, without your
prior written consent (which may be by electronic mail), offer for sale, sell or enter into any
agreement to sell, or otherwise dispose of, or publicly announce an intention to effect any such
transactions, any securities of the Company.
(j) The Company will apply the proceeds from the sale of the Shares as set forth in the
description under “Use of Proceeds” in the Pricing Prospectus and the Prospectus which description
complies and will comply in all respects with the requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all correspondence to and from, and
all documents issued to and by, the SEC in connection with the registration of the Shares under the
1933 Act.
(l) After the date of this Agreement and prior to the Closing Date (and, if applicable, the
Option Closing Date), the Company will furnish to you, as soon as they have been prepared, and
prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated
financial statements of the Company and its subsidiaries for any periods subsequent to the periods
covered by the financial statements appearing in the Registration Statement, the Pricing Prospectus
and the Prospectus.
(m) After the date of this Agreement and prior to the Closing Date (and, if applicable, the
Option Closing Date), the Company will not issue any press releases or other communications
directly or indirectly and will hold no press conferences with respect to the Company or any of its
subsidiaries, the financial condition, results of operations, business, properties, assets or
liabilities of the Company or any of its subsidiaries, or the offering of the Shares, without your
prior written consent.
(n) The Company will use its best efforts to obtain approval for, and maintain the listing of
the Shares on, the NYSE and to file with the NYSE all documents and notices required by the NYSE of
companies that have securities listed on included on the NYSE.
(o) The Company and its subsidiaries will maintain and keep accurate books and records
reflecting their assets and maintain internal accounting controls which provide reasonable
assurance that (1) transactions are executed in accordance with management’s
16
authorization, (2)
transactions are recorded as necessary to permit the preparation of the Company’s consolidated
financial statements and to maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its subsidiaries is permitted only in
accordance with management’s authorization, and (4) the recorded accounts of the assets of the
Company and its subsidiaries are compared with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act for the sale of the
Shares, the Company shall both file an Abbreviated Registration Statement with the SEC in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act
by the earlier of (i) 8:00 P.M., New York City time, on the date of this Agreement, and (ii) the
time that confirmations are given or sent, as specified by Rule 462(b)(2).
(q) If at any time during the 90-day period after the date of this Agreement, any rumor,
publication or event relating to or affecting the Company shall occur as a result of which in your
opinion the market price of the Shares has been or is likely to be materially affected (regardless
of whether such rumor, publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising the Company to the effect set
forth above, forthwith consult with you concerning the issuance of a press release or other public
statement, responding to or commenting on such rumor, publication or event.
(r) The Company will cause each of its directors and executive officers set forth on Annex G
hereto to execute and deliver to you “lock-up” agreements, each substantially in the form of Annex
F hereto.
(s) The Company will continue to qualify as a REIT under the Code.
(t) For the fiscal year ended December 31, 2006, the Company had retained BDO Xxxxxxx, LLP as
its qualified accountants. In the course of its audit BDO Xxxxxxx reviewed the Company’s test
procedures and conducted annual compliance reviews designed to determine the Company’s compliance
with REIT provisions of the Code. The Company monitors and maintains appropriate accounting
systems and procedures designed to determined compliance with the REIT provisions of the Code. For
the 2007 fiscal year the Company has engaged BDO
Xxxxxxx to prepare an audit, including a review of the Company’s test procedures and to conduct
annual compliance reviews designed to determine the Company’s compliance with REIT provisions of
the Code. The Company will continue to monitor and maintain appropriate accounting systems and
procedures designed to determined compliance with the REIT provisions of the Code.
(u) The Company agrees to give, and will cause each of its subsidiaries to give, and shall
direct its financial advisors, accountants and legal counsel to give, upon reasonable notice, the
Underwriters and counsel to the Underwriters and their respective authorized representatives
reasonable access to all offices and other facilities and to all contracts, agreements,
commitments, books and records of or pertaining to the Company or its subsidiaries, will permit the
foregoing to make such reasonable inspections as they may require or would be appropriate in
fulfilling any due diligence or other obligations as provided by law and will cause its officers to
furnish to the Underwriters with such financial and operating data and other information with
17
respect to the business and properties of the Company and its subsidiaries as the Underwriters may
from time to time reasonably request. The Underwriters, counsel to the Underwriters, and their
respective authorized representatives will use such information only in full compliance with
Regulation FD.
(v) During the period beginning from the date of this Agreement and continuing through the
Closing Date (and, if applicable, the Option Closing Date), the Company agrees not to, and to use
its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take,
directly or indirectly, any action designed to stabilize or manipulate the price of any security of
the Company, or which may cause or result in, or which might in the future reasonably be expected
to cause or result in, the stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for,
purchase or pay anyone any compensation for soliciting purchases of the Shares other than pursuant
to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any
order to purchase any other securities of the Company.
(w) The Company will comply with all applicable securities and other applicable laws, rules
and regulations, including, without limitation, the Sarbanes Oxley Act, and will use its best
efforts to cause the Company’s directors and officers, in their capacities as such, to comply with
such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes
Oxley Act.
(x) If so requested by you, the Company shall cause to be prepared and delivered, at its
expense, by the Applicable Time, to Stifel an “electronic Prospectus” to be used by Stifel in
connection with the offering and sale of the Shares. As used herein, the term “electronic
Prospectus” means a form of the most recent Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, and any amendment or supplement thereto, that meets each of the
following conditions: (i) it shall be encoded in an electronic format, satisfactory to Stifel,
that may be transmitted electronically by Stifel to offerees and purchasers of the Shares, (ii) it
shall disclose the same information as such paper Preliminary Prospectus, Issuer Free Writing
Prospectus or the Prospectus, as the case may be; and (iii) it shall be in or convertible into a
paper format or an electronic format, satisfactory to Stifel, that will allow investors to store
and have continuously ready access to such Preliminary Prospectus, Issuer Free Writing Prospectus
or the Prospectus at any future time, without charge to investors (other than any fee charged
for subscription to the Internet generally). The Company hereby confirms that, if so requested by
Stifel, it has included or will include in the Prospectus filed with the Commission an undertaking
that, upon receipt of a request by an investor or his or her representative, the Company shall
transmit or cause to be transmitted promptly, without charge, a paper copy of such paper
Preliminary Prospectus, Issuer Free Writing Prospectus or the Prospectus to such investor or
representative.
(y) The Company represents and agrees that, without the prior consent of Stifel, it has not
made and will not make any offer relating to the Shares that would constitute a “free writing
prospectus” as defined in Rule 405 under the 1933 Act; Stifel represents and agrees that, without
the prior consent of the Company, it has not made and will not make any offer relating to the
Shares that would constitute a free writing prospectus; any such free writing prospectus the use of
which has been consented to by the Company and Stifel is listed on Schedule I hereto;
18
(z) The Company has complied and will comply with the requirements of Rule 433 under the 1933
Act applicable to any Issuer Free Writing Prospectus, including timely filing with the SEC or
retention where required and legending; the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the 1933 Act to avoid a requirement to
file with the SEC any electronic road show;
(aa) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to Stifel and, if requested
by Stifel, will prepare and furnish without charge to it an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or omissions in an Issuer Free
Writing Prospectus made in reliance upon and in strict conformity with information furnished in
writing to the Company by Stifel expressly for use therein.
6. Conditions to the Underwriters’ Obligations. The obligations of the Underwriters
hereunder to purchase the Shares on the Closing Date or each Option Closing Date, as the case may
be, shall be subject to the accuracy as of the date hereof, and as of the Closing Date (and, if
applicable, any Option Closing Date), of the representations and warranties of the Company
contained herein, to the performance by the Company of its covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement has not previously become effective, the Registration
Statement and all post-effective amendments thereto shall have become effective not later than
11:00 P.M., New York City time, on the date of this Agreement, or at such later date and time as
may be approved by the Underwriters; if the Company has elected to rely on Rule 462(b) under the
1933 Act, the Abbreviated Registration Statement shall have become effective not later than the
earlier of (x) 8:00 P.M. New York City time, on the date of this Agreement, or (y) at such later
date and time as may be approved by the Underwriters. All material required to be filed by
the Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the SEC within
the applicable time period prescribed for such filing by Rule 433 under the 1933 Act. All filings
required by Rule 424, Rule 430A and Rule 430B of the 1933 Act Rules and Regulations shall have been
made. No stop order suspending the effectiveness of the Registration Statement, as amended from
time to time, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any
part thereof shall have been issued and no proceeding for that purpose shall have been initiated
or, to the knowledge of the Company or any Underwriter, threatened or contemplated by the SEC, and
any request of the SEC for additional information (to be included in the Registration Statement,
the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have advised the Company on or prior to the Closing Date (and, if
applicable, the Option Closing Date), that the Registration Statement, the Pricing Prospectus, the
Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto contains an
untrue statement of fact which, in the opinion of counsel to the
19
Underwriters, is material, or
omits to state a fact which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date), you shall have received
one or more opinions of counsel for the Company, addressed to you and dated the Closing Date (and,
if applicable, the Option Closing Date), in substantially the forms of Annex C and Annex D.
In rendering the opinions, such counsel may rely, (1) as to matters involving laws of any
jurisdiction other than New York or the United States, upon opinions addressed to the Underwriters
of other counsel satisfactory to it and Xxxxx Xxxx LLP, and (2) as to all matters of fact, upon
certificates and written statements of the executive officers of, and accountants for, the Company,
provided, in either case, that such counsel shall state in their opinion that they and the
Underwriters are justified in relying thereon.
Such counsel shall also confirm that during the preparation of the Registration Statement,
Pricing Prospectus, any Issuer Free Writing Prospectus and the Prospectus, such counsel
participated in conferences with officers and representatives of the Company and its independent
accountants, at which conferences the contents of the Registration Statement, Pricing Prospectus,
any Issuer Free Writing Prospectus and the Prospectus including all documents filed under the 1934
Act and deemed incorporated by reference therein were discussed, reviewed and revised. On the
basis of the information which was developed in the course thereof, considered in light of such
counsel’s understanding of applicable law and the experience gained by such counsel through their
practice thereunder, without such counsel assuming responsibility for the accuracy and completeness
of such statements except to the extent expressly provided above, such counsel shall confirm that
nothing came to their attention that would lead them to believe that either the Registration
Statement (including any document filed under the 1934 Act and deemed incorporated by reference
therein), as of the Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or the Prospectus or any amendment or supplement thereto (including any document
filed under the 1934 Act and deemed incorporated by reference therein) as of its respective issue
date and as of the Closing Date (and, if applicable, the Option Closing Date), contained or
contains any untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than the financial statements or
other financial data as to which such counsel need express no opinion) or that, as of the
Applicable Time, such Closing Date or Option Closing Date, as the case may be, any of the
Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package or the Prospectus or
any further amendment or supplement thereto made by the Company prior to the Applicable Time, such
Closing Date or Option Closing Date, as the case may be, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading (other than the financial statements or other financial data as to which such
counsel need express no opinion).
20
(d) You shall have received on the Closing Date (and, if applicable, the Option Closing Date),
from Xxxxx Xxxx LLP, counsel to the Underwriters, such opinion or opinions, dated the Closing Date
(and, if applicable, the Option Closing Date) with respect to such matters as you may reasonably
require; and the Company shall have furnished to such counsel such documents as they reasonably
request for the purposes of enabling them to review or pass on the matters referred to in this
Section 6 and in order to evidence the accuracy, completeness and satisfaction of the
representations, warranties and conditions herein contained.
(e) On the date of this Agreement and on the Closing Date (and, if applicable, the Option
Closing Date), you shall have received from the Company’s independent accountants, a letter or
letters, dated the date of this Agreement and the Closing Date (and, if applicable, the Option
Closing Date), respectively, in form and substance satisfactory to you, confirming that they are
independent public accountants with respect to the Company within the meaning of the 1933 Act and
the 1933 Act Rules and Regulations, and containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information, including any pro forma financial information,
relating to the Company contained in the Registration Statement, the Pricing Prospectus and the
Prospectus.
(f) Except as contemplated in the Pricing Prospectus (i) neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree; and (ii)
subsequent to the respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, or entered into any transactions, and there shall
not have been any change in the capital stock or short-term or long-term debt of the Company and
its subsidiaries or any change, or any development involving or which might reasonably be expected
to involve a prospective change in the condition (financial or other), net worth, business,
affairs, management, prospects, results of operations or cash flow of the Company and
its subsidiaries, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered on the Closing Date (and, if
applicable, the Option Closing Date) on the terms and in the manner contemplated in the Pricing
Prospectus.
(g) There shall not have occurred any of the following: (i) a general moratorium on
commercial banking activities declared by either federal or any state authorities; (ii) the
outbreak or escalation of hostilities or escalation of acts of terrorism involving the United
States or the declaration by the United States of a national emergency or war, which in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares in the manner contemplated in the Prospectus; (iii) a suspension or material
limitation in trading in the Company’s securities, or in securities generally, on the NYSE; or (iv)
any calamity or crisis, change in national, international or world affairs, act of God, change in
the international or domestic markets, or change in the existing financial, political or economic
conditions in the United States or elsewhere, which in your judgment makes it impracticable or
inadvisable to
21
proceed with the public offering or the delivery of the Shares in the manner
contemplated in the Prospectus.
(h) You shall have received certificates, dated the Closing Date (and, if applicable, the
Option Closing Date) and signed by the Chief Executive Officer and the Chief Financial Officer of
the Company, in their capacities as such, stating that:
(i) the condition set forth in Section 6(a) has been fully satisfied;
(ii) they have carefully examined the Registration Statement, the Pricing Prospectus,
the Pricing Disclosure Package and the Prospectus, as amended or supplemented and all
documents incorporated by reference therein and nothing has come to their attention that
would lead them to believe that the Registration Statement or the Pricing Prospectus, or any
amendment or supplement thereto or any documents incorporated by reference therein as of
their respective effective, issue or filing dates, contained, and the Prospectus as amended
or supplemented and all documents incorporated by reference therein and when read together
with the documents incorporated by reference therein, at such Closing Date or Option Closing
Date, as the case may be, contains any untrue statement of a material fact, or omits to
state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading
or that, as of the Applicable Time, the Pricing Disclosure Package contained any untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(iii) The Company’s Chief Executive Officer and Chief Financial Officer are responsible
for establishing and maintaining disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) of the 1934 Act Rules and Regulations) and have (a) designed such
disclosure controls and procedures, or caused such disclosure controls to be designed under
their supervision, to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known to them
by others within those entities, particularly during the periods in which the Pricing
Prospectus and Prospectus were being prepared, (b) evaluated the effectiveness of the
Company’s disclosure controls and procedures, and (c) has timely disclosed in the Pricing
Prospectus and Prospectus any changes in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
(iv) since the date of this Agreement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration Statement, the Pricing Prospectus or
the Prospectus which has not been so set forth and there has been no document required to be
filed under the 1934 Act and the 1934 Act Rules and Regulations that upon such filing would
be deemed to be incorporated by reference into the Pricing Prospectus or the Prospectus that
has not been so filed;
(v) all representations and warranties made herein by the Company are true and correct
at such Closing Date, with the same effect as if made on and as of such
22
Closing Date, and
all agreements herein to be performed or complied with by the Company on or prior to such
Closing Date have been duly performed and complied with by the Company;
(vi) neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree;
(vii) except as disclosed in the Pricing Prospectus, subsequent to the respective dates
as of which information is given in the Registration Statement and the Pricing Prospectus,
neither the Company nor any of its subsidiaries has incurred any liabilities or obligations,
direct or contingent, other than in the ordinary course of business, or entered into any
transactions not in the ordinary course of business, which in either case are material to
the Company or such subsidiary; and there has not been any change in the capital stock or
material increase in the short-term debt or long-term debt of the Company or any of its
subsidiaries or any material adverse change or any development involving or which may
reasonably be expected to result in a Material Adverse Effect; and there has been no
dividend or distribution of any kind, paid or made by the Company on any class of its
capital stock;
(viii) the Company is in compliance, both prior to and after giving effect to the
transactions contemplated hereby, with the financial covenants set forth in the Company’s
credit agreement and other agreements and instruments respecting outstanding indebtedness of
the Company and its subsidiaries; and
(ix) covering such other matters as you may reasonably request.
(i) The Company shall have furnished to you at the Closing Date (and, if applicable, the
Option Closing Date) such further information, opinions, certificates, letters and documents as you
may have reasonably requested.
(j) The Shares shall have been approved for trading upon official notice of issuance on the
NYSE.
(k) Stifel shall have received “lock-up” agreements, each substantially in the form of Annex F
hereto from each of the Company’s directors and executive officers set forth on Annex G hereto and
such agreements shall be in full force and effect on the Closing Date (and, if applicable, the
Option Closing Date).
All such opinions, certificates, letters and documents will be in compliance with the
provisions hereof only if they are satisfactory in form and substance to you and to Xxxxx Xxxx LLP,
counsel for the Underwriters. The Company will furnish you with such signed and conformed copies
of such opinions, certificates, letters and documents as you may request.
23
If any of the conditions specified above in this Section 6 shall not have been satisfied at or
prior to the Closing Date (and, if applicable, the Option Closing Date) or waived by you in
writing, this Agreement may be terminated by you on notice to the Company.
7. Indemnification and Contribution. (a) The Company shall indemnify and hold harmless the
Underwriters from and against any losses, damages or liabilities, joint or several, to which the
Underwriters may become subject, under the 1933 Act or otherwise, insofar as such losses, damages
or liabilities (or actions or claims in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereto, or any Prospectus Supplement, Preliminary Prospectus, Pricing
Prospectus, Issuer Free Writing Prospectus or the Prospectus or in any blue sky application or
other document executed by the Company or based on any information furnished in writing by the
Company, filed in any state or other jurisdiction in order to qualify any or all of the Shares
under the securities laws thereof (the “Blue Sky Application”), or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading or an untrue statement or alleged untrue statement of a material fact
contained in any Prospectus Supplement, Preliminary Prospectus. Pricing Prospectus, Issuer Free
Writing Prospectus, the Prospectus or any other prospectus relating to the Shares or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading,
or (ii) any untrue statement or alleged untrue statement made by the Company in Section 4 of this
Agreement or in any representation or warranty by the Company to the Underwriters of the failure by
the Company to perform when and as required by any agreement or covenant contained herein and will
reimburse each Underwriter for any legal or other expenses incurred by such Underwriter in
connection with investigating, preparing, pursuing or defending against any such loss, damage,
liability or action or claim, including, without limitation, any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable fees and expenses of
counsel to the indemnified party, as such expenses are incurred (including such losses, damages,
liabilities or expenses to the extent of the aggregate amount paid in settlement of any such action
or claim, provided that (subject to Section 7(d) hereof) any such settlement is effected with the written
consent of the Company); provided, however, that the Company shall not be liable in any such case
to the extent, but only to the extent, that any such loss, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or alleged omission made in
any Prospectus Supplement, Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing
Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the
Shares, or any such amendment or supplement, in reliance upon and in conformity with written
information relating to the Underwriters furnished to the Company by you, expressly for use in the
preparation thereof.
(b) The Underwriters will indemnify and hold harmless the Company from and against any losses,
damages or liabilities to which the Company may become subject, under the 1933 Act or otherwise,
insofar as such losses, damages or liabilities (or actions or claims in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a material fact contained
in any Prospectus Supplement, Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing
Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the
Shares, or any amendment or supplement thereto, or any Blue Sky Application, or arise out of are
based upon the omission or alleged omission to state therein
24
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 any Prospectus Supplement, Preliminary Prospectus, Pricing Prospectus, Issuer
Free Writing Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Shares, or any such amendment or supplement, or any Blue Sky Application, in
reliance upon and in conformity with written information relating to the Underwriters furnished to
the Company by you, expressly for use in the preparation thereof, and will reimburse the Company
for any legal or other expenses incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred (including such losses, damages,
liabilities or expenses to the extent of the aggregate amount paid in settlement of any such action
or claim, provided that (subject to Section 7(d) hereof) any such settlement is effected with the
written consent of the Underwriters.
(c) Promptly after receipt by an indemnified party under Section 7(a) or 7(b) hereof of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party under Section 7(a) or 7(b) hereof, notify each such
indemnifying party in writing of the commencement thereof, but the failure so to notify such
indemnifying party shall not relieve such indemnifying party from any liability except to the
extent that it has been prejudiced in any material respect by such failure or from any liability
that it may have to any such indemnified party otherwise than under Section 7(a) or 7(b) hereof.
In case any such action shall be brought against any such indemnified party and it shall notify
each indemnifying party of the commencement thereof, each such indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party under Section 7(a) or 7(b) hereof similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and, after notice from such indemnifying party to
such indemnified party of its election so to assume the defense thereof, such indemnifying party
shall not be liable to such indemnified party under Section 7(a) or 7(b) hereof for any legal
expenses of other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the expense of the indemnifying
party has been authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by such counsel that there may be a conflict of interest between the indemnifying party and
the indemnified party in the conduct of the defense, or certain aspects of the defense, of such
action (in which case the indemnifying party shall not have the right to direct the defense of such
action with respect to those matters or aspects of the defense on which a conflict exists or may
exist on behalf of the indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel reasonably satisfactory to such indemnified party to assume the defense of such
action, in any of which events such fees and expenses to the extent applicable shall be borne, and
shall be paid as incurred, by the indemnifying party. If at any time such indemnified party shall
have requested such indemnifying party under Section 7(a) or 7(b) hereof to reimburse such
indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 7(a) or 7(b) hereof effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of such request for reimbursement, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days
25
prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request for reimbursement prior to the date of such settlement. No
such indemnifying party shall, without the written consent of such indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not such indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (A) includes an unconditional release of such
indemnified party from all liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
such indemnified party. In no event shall such indemnifying parties be liable for the fees and
expenses of more than one counsel, including any local counsel, for all such indemnified parties in
connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to
indemnify or hold harmless an indemnified party under Section 7(a) or 7(b) hereof in respect of any
losses, damages or liabilities (or actions or claims in respect thereof) referred to therein, then
each indemnifying party under Section 7(a) or 7(b) hereof shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages or liabilities (or actions or
claims in respect thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Shares. If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to give the notice required
under Section 7(c) hereof and such indemnifying party was prejudiced in a material respect by such
failure, then each such indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault, as applicable, of
the Company, on the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, damages or liabilities (or actions or claims
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by, as applicable, the Company, on the one hand, and the Underwriters, on the other hand,
shall be deemed to be in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault, as applicable, of the Company, on
the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company, on the
one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if contribution pursuant
to this Section 7(d) were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to above in this Section 7(d).
The amount paid or payable by such an indemnified party as a result of the losses, damages or
liabilities (or actions or claims in respect thereof) referred to above in this Section 7(d) shall
be deemed to include any legal or other expenses incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), the Underwriters shall not be required to
26
contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that the Underwriters have
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability
that the Company may otherwise have and shall extend, upon the same terms and conditions, to each
officer, director, employee, agent or other representative and to each person, if any, who controls
any Underwriter within the meaning of the 1933 Act; and the obligations of the Underwriters under
this Section 7 shall be in addition to any liability that the respective Underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer and director of the
Company who signed the Registration Statement and to each person, if any, who controls the Company
within the meaning of the 1933 Act.
(f) The parties to this Agreement hereby acknowledge that they are sophisticated business
persons who were represented by counsel during the negotiations regarding the provisions hereof,
including, without limitation, the provisions of this Section 7, and are fully informed regarding
such provisions. They further acknowledge that the provisions of this Section 7 fairly allocate
the risks in light of the ability of the parties to investigate the Company and its business in
order to assure that adequate disclosure is made in the Registration Statement, any Prospectus
Supplement, Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing Prospectus, the
Prospectus, and any supplement or amendment thereof, as required by the 1933 Act.
8. Representations and Agreements to Survive Delivery. The respective representations,
warranties, agreements and statements of the Company and the Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain
operative and in full force and effect regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of the Underwriters or any controlling person of any
Underwriter, the Company or any of its officers, directors or any controlling persons, and shall
survive delivery of and payment for the Shares hereunder.
9. Substitution of Underwriters. [Reserved]
10. Termination. This Agreement may be terminated by you at any time at or prior to the
Closing Date (or, if applicable, the Option Closing Date) by notice to the Company if any condition
specified in Section 6 hereof shall not have been satisfied on or prior to such Closing Date. Any
such termination shall be without liability of any party to any other party except as provided in
Sections 7 and 11 hereof. If you terminate this Agreement as provided in Section 10, you shall
notify the Company by telephone or telegram, confirmed in writing as provided in Section 12.
11. Costs and Expenses. The Company, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, will bear and pay the costs and expenses incident to
the registration of the Shares and public offering thereof, including, without limitation, (a) all
expenses (including transfer taxes) incurred in connection
27
with the delivery to the Underwriters of
the Shares, the filing fees of the SEC, the fees and expenses of the Company’s counsel and
accountants, (b) the preparation, printing, filing, delivery and shipping of the Registration
Statement, each Prospectus Supplement, Preliminary Prospectus, Pricing Prospectus, Issuer Free
Writing Prospectus, the Prospectus and any amendments or supplements thereto and the printing,
delivery and shipping of this Agreement and other underwriting documents and any instruments or
documents related to any of the foregoing, (c) the furnishing of copies of such documents to the
Underwriters, (d) the registration or qualification of the Shares for offering and sale under the
securities laws of the various states and other jurisdictions, including the reasonable fees and
disbursements of counsel to the Underwriters relating to such registration or qualification and in
connection with preparing any Blue Sky Memoranda or related analysis, (e) all printing and
engraving costs related to preparation of the certificates for the Shares, including transfer agent
and registrar fees, (f) all fees and expenses relating to the authorization of the Shares for
trading on the NYSE, (g) all travel expenses, including air fare and accommodation expenses, of
representatives of the Company in connection with the offering of the Shares, (h) the approval of
the Shares by DTC for “book-entry” transfer, and (i) all of the other costs and expenses incident
to the performance by the Company of the registration and offering of the Shares; provided, that
the Underwriters will bear and pay the fees and expenses of the Underwriters’ counsel (except as
specifically provided in this Section 11), the Underwriters’ out-of-pocket expenses, and any
advertising costs and expenses incurred by the Underwriters incident to the public offering of the
Shares.
12. Notices. All notices or communications hereunder, except as herein otherwise specifically
provided, shall be in writing and if sent to the Underwriters shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed x/x Xxxxxx, Xxxxxxxx & Company, Incorporated,
000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (fax no.: (000) 000-0000);
Attention: Xxxxxx X. Xxxxxxxx, facsimile number (000) 000-0000 with a copy to Xxxxx Xxxx LLP,
attention: J. Xxxx Xxxxxx, facsimile number (000) 000-0000, or if sent to the Company shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed to the Company at
0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, attention: General Counsel, facsimile number
(000) 000-0000, with a copy to Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, Attention: Xxxxxxxx X. Xxxx,
facsimile number (000) 000-0000.
13. Parties. This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and, to the extent provided in Sections 7 and 9, the officers and
directors of the Company and each person who controls the Company or the Underwriters and their
respective heirs, executors, administrators, successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, corporation or
other entity any legal or equitable right, remedy or claim under or in respect of this Agreement or
any provision herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and said controlling persons and said officers and directors, and
for the benefit of no other person, corporation or other entity. No purchaser of any of the Shares
from any Underwriter shall be construed a successor or assign by reason merely of such purchase.
In all dealings hereunder, you shall act on behalf of each of the several Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of the Underwriters, made or given by you jointly or by Stifel on behalf of
28
you
as the representatives, as if the same shall have been made or given in writing by the
Underwriters.
14. Information Furnished by Underwriters. There are no statements in the Prospectus
Supplement that constitute information furnished by or on behalf of the Underwriters as such
information is referred to in Section 4(a)(ii) and Section 7 hereof.
15. Status of Parties. The Company acknowledges and agrees that (i) the purchase and sale of
the Shares pursuant to this Agreement, including the determination of the public offering price of
the Shares and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company on the one hand, and the several Underwriters, on the other, (ii) in connection
therewith and with the process leading to such transaction each Underwriter is acting solely as a
principal and not the agent or fiduciary of the Company or its stockholders, creditors, employees
or any other party, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in
favor of the Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) or any other obligation to the Company except the obligations expressly set forth
in this Agreement, and (iv) the Company has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or
any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process leading thereto.
16. Counterparts. This Agreement may be executed by any one or more of the parties hereto 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 instrument.
17. Pronouns. Whenever a pronoun of any gender or number is used herein, it shall, where
appropriate, be deemed to include any other gender and number.
18. Time of Essence. Time shall be of the essence in this Agreement.
19. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, without giving effect to the choice of law or conflict of laws
principles thereof.
29
If the foregoing is in accordance with your understanding, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among
the Company and the Underwriters.
HEALTHCARE REALTY TRUST INCORPORATED |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Chairman of the Board and Chief Executive Officer | |||
Accepted as of the date hereof:
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: Xxxxxx, Xxxxxxxx & Company, Incorporated
By: | /s/ Xx Xxxxxxx, Jr. | |||
Title: Managing Director | ||||
30
SCHEDULE I
Free Writing Prospectus[es]
None
31
ANNEX A
Pricing Disclosure Package
Preliminary Prospectus Supplement dated September 25, 2007 and filed with the SEC on
September 25, 2007 and Current Report on Form 8-K dated September 25, 2007 and filed
with the SEC on September 25, 2007
September 25, 2007 and Current Report on Form 8-K dated September 25, 2007 and filed
with the SEC on September 25, 2007
32
ANNEX B
Issuer Free Writing Prospectus[es]
none
33
ANNEX C
(i) The Registration Statement and all post-effective amendments thereto and the
Abbreviated Registration Statement, if any, have become effective under the 1933 Act; any
required filing of the Pricing Prospectus, the Prospectus or any supplement thereto pursuant
to Rule 424 or otherwise has been made in the manner and within the time period required
thereby; all material required to be filed by the Company pursuant to Rule 433(d) under the
1933 Act shall have been filed with the Commission within the applicable time period
prescribed for such filing by Rule 433 under the 1933 Act; and, to the knowledge of such
counsel, no stop or other order suspending the effectiveness of the Registration Statement,
the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued
and no proceedings for that purpose have been instituted or are pending or contemplated
under the 1933 Act or under the securities laws of any jurisdiction.
(ii) The Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package
and the Prospectus, and any further amendments or supplements thereto made by the Company
prior to such Closing Date or Option Closing Date (including any document incorporated by
reference into the Pricing Prospectus or Prospectus), as of their respective effective or
issue date, comply as to form and appear on their face to be appropriately responsive in all
material respects to the requirements of Form S-3 under the 1933 Act and the applicable 1933
Act Rules and Regulations (except that such counsel need express no opinion as to the
financial statements, notes thereto, supporting schedules or other financial or statistical
information included in or incorporated by reference into or omitted from the Registration
Statement, Pricing Prospectus or Prospectus); the conditions for use of Form S-3 have been
satisfied; and, as of the date they were filed with the SEC, the documents incorporated by
reference in the Pricing Prospectus and Prospectus appear on their face to comply as to form
and be appropriately responsive in all material respects with the requirements of the 1934
Act and the applicable 1934 Act Rules and Regulations (except that such counsel need express
no opinion as to the financial statements, notes thereto, supporting schedules or other
financial or statistical information included in or incorporated by reference into or
omitted from the Registration Statement or the Pricing Prospectus or Prospectus).
(iii) The Agreement has been duly authorized, executed and delivered by the Company and
each constitutes a valid and legally binding obligation of the Company enforceable against
the Company in accordance with its terms, except as enforceability may be limited by the
Exceptions and except to the extent the enforceability of the indemnification and
contribution provisions of Section 7 of the Agreement may be limited by public policy
considerations.
(iv) The Company and its Material Subsidiaries are validly existing as corporations or
other organizations in good standing under the laws of the states or other jurisdictions in
which they are incorporated or organized, with full power and authority (corporate and
other) to own, lease and operate their properties and conduct their
businesses as described in the Pricing Prospectus, the Pricing Disclosure Package and the
34
Prospectus, with respect to the Company, to execute and deliver, and perform the Company’s
obligations under, the Agreement; the Company and its Material Subsidiaries are duly
qualified to do business as foreign corporations or other organizations in good standing in
each state or other jurisdiction in which their ownership or leasing of property or conduct
of business legally requires such qualification, except where the failure to be so
qualified, individually or in the aggregate, would not have a Material Adverse Effect.
(v) The outstanding shares of capital stock or other securities evidencing equity
ownership of each of the Material Subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and, to the knowledge of such counsel, (a) are owned by
the Company free and clear of any mortgage, pledge, lien, encumbrance, charge or adverse
claim and are not the subject of any agreement or understanding with any person, and (b)
were not issued in violation of any preemptive or similar rights; and, to the knowledge of
such counsel, except as disclosed in the Pricing Prospectus, the Pricing Disclosure Package
and the Prospectus, there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale, or instruments related to or entitling
any person to purchase or otherwise acquire any shares of, or any security convertible into
or exercisable or exchangeable for, any such shares of capital stock or other ownership
interest of any of such subsidiaries.
(vi) The issuance and sale of the Shares and the execution, delivery and performance by
the Company of the Agreement and the consummation of the transactions herein contemplated,
will not conflict with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any properties or assets of the Company or any of its
subsidiaries under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to
which any of the properties or assets of the Company or any of its subsidiaries is subject,
except to such extent as, individually or in the aggregate, does not have a Material Adverse
Effect, nor will such action result in any violation of the provisions of the Company’s
articles of incorporation or bylaws or any statute, rule, regulation or other law, or any
order or judgment known to such counsel, of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties.
(vii) No consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required in connection with the execution,
delivery and performance of the Agreement, and the issuance and sale of the Shares, and the
consummation of the transactions contemplated hereby, except such as may be required under
the 1933 Act or the 1933 Act Rules and Regulations and have been obtained, or as may be
required by the NYSE or under state securities or blue sky laws in connection with the
purchase and distribution of the Shares by the Underwriters. Each of the Company and its
subsidiaries has filed all Notices pursuant to, and has
obtained all Approvals required to be obtained under, and has otherwise complied with all
requirements of, all applicable laws and regulations (other than state securities or blue
35
sky laws) in connection with the issuance and sale of the Shares, in each case with such
exceptions, individually or in the aggregate, as would not affect the validity of the
Shares, their issuance or the transactions contemplated hereby or have a Material Adverse
Effect; and no such Notices or Approvals (other than those required to be filed with or
obtained from state securities or blue sky law authorities) are required to be filed or
obtained by the Company or any of its subsidiaries in connection with the execution,
delivery and performance of this Agreement, the issuance and sale of the Shares or the
transactions contemplated hereby, in each case with such exceptions, individually or in the
aggregate, as would not affect the validity of the Shares, their issuance or the
transactions contemplated hereby or have a Material Adverse Effect.
(viii) The Company has duly and validly authorized capital stock as set forth in the
Pricing Prospectus, the Pricing Disclosure Package and the
Prospectus; all outstanding shares of Common Stock of the Company and the Shares conform, or when issued will conform in
all material respects, as to legal matters to the description thereof in the Pricing
Prospectus, the Pricing Disclosure Package and the Prospectus and have been duly authorized,
validly issued, fully paid and non assessable; and the Shares to be sold by the Company have
been duly authorized and, when delivered and paid for in accordance with the Agreement, will
be validly issued, fully paid and non-assessable. All corporate action required to be taken
by the Company for the authorization, issue and sale of the Shares has been duly and validly
taken. The Shares are duly authorized for trading, subject to official notice of issuance
and evidence of satisfactory distribution on the NYSE. The form of specimen certificate
representing the Shares filed as an exhibit to the Registration Statement is in valid and
sufficient form. The issuance of the Shares to be purchased from the Company hereunder is
not subject to preemptive or other similar rights, or any restriction upon the voting or
transfer thereof (except for rights and restrictions relating primarily to the Company’s
status as a REIT as described in Section 4(a) of the Agreement). The issuance and sale of
the Shares by the Company to the Underwriters and the fulfillment of and compliance with all
of the provisions of the Agreement by the Company do not result in a breach of any terms or
provisions, or constitute a default under, any existing obligation of the Company pursuant
to applicable law or the articles of incorporation, bylaws or governing documents of the
Company or, to the knowledge of such counsel, any material agreement to which the Company or
any of its subsidiaries is a party or by which any of them may be bound; and, to such
counsel’s knowledge, except as described in the Pricing Prospectus, the Pricing Disclosure
Package and the Prospectus, there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or rights related to or
entitling any person to purchase or otherwise acquire any shares of, or any security
convertible into or exercisable or exchangeable for, the capital stock of, or other
ownership interest in, the Company.
(ix) To the knowledge of such counsel, the Company and each of its subsidiaries hold
all Permits from all state, federal and other regulatory authorities, and
have satisfied in all material respects the requirements imposed by regulatory bodies,
administrative agencies or other governmental bodies, agencies or officials, that are
required for the Company and its subsidiaries lawfully to own, lease and operate its
36
properties and conduct its business as described in the Pricing Prospectus, the Pricing
Disclosure Package and the Prospectus, in each case with such exceptions, individually or in
the aggregate, as would not have a Material Adverse Effect, and, to the knowledge of such
counsel, each of the Company and its subsidiaries is conducting its business in compliance
in all material respects with all of the laws, rules and regulations of each jurisdiction in
which it conducts its business.
(x) The statements made in the Pricing Prospectus, the Pricing Disclosure Package and
the Prospectus under the captions “The Company,” “Forward Looking Statements and Risk
Factors,” “Business,” “Description of Common Stock” and “Federal Income Tax and ERISA
Considerations” and under Item 15 of Part II of the Registration Statement, and in the
Company’s Annual Report on Form 10-K of the year ended December 31, 2006 under “Item 1,
Business,” “Item 1A, Risk Factors,” “Item 3, Legal Proceedings,” “Item 11, Executive
Compensation” and “Item 13, “Certain Relationships and Related Transactions,” and in the
Company’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2007 and June 30,
2007 under Part II, Item 1, “Legal Proceedings” and under Part II, Item 1A, “Risk Factors”
to the extent that they constitute summaries of statutes, laws, ordinances, rules,
regulations, legal or governmental proceedings, contracts and other documents referred to
therein, have been reviewed by such counsel and fairly present in all material respects the
information disclosed therein and as required under the 1933 Act and the 1933 Act Rules and
Regulations.
(xi) Neither the Company nor any of its subsidiaries is, or with the giving of notice
or lapse of time or both would be, in default or violation with respect to its articles of
incorporation or by-laws. To the knowledge of such counsel, neither the Company nor any of
its subsidiaries is, or with the giving of notice or lapse of time or both would be, in
default in the performance or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any of the properties
or assets of the Company or any of its subsidiaries is subject, or in violation of any
statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to
which it is subject, including, without limitation, Section 13 of the 1934 Act, which
default or violation, individually or in the aggregate, would have a Material Adverse
Effect.
(xii) To the knowledge of such counsel, (A) there are no material (individually, or in
the aggregate) legal, governmental or regulatory proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or of which the business or properties of
the Company or any of its subsidiaries is the subject which are not disclosed in the
Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the
Prospectus; (B) there are no contracts or documents of a character required to be
described in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure
Package or the Prospectus or to be filed as an exhibit to the Registration Statement which
are not described or filed as required; and (C) there are no statutes, ordinances, laws,
rules or regulations required to be described in the Registration Statement, the Pricing
37
Prospectus, the Pricing Disclosure Package or Prospectus which are not described as
required.
(xiii) The Company is not and, after giving effect to the offering and sale of the
Shares, will not be an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the 1940 Act.
(xiv) All securities of the Company known to us to have been issued since July 22, 2004
were issued and sold in material compliance with all applicable federal and state laws.
(xv) To the knowledge of such counsel and except as disclosed in the Pricing
Prospectus, the Pricing Disclosure Package and the Prospectus, no holder of any security of
the Company has any right to require registration of shares of the Common Stock or any other
security of the Company because of the filing of the Registration Statement or the
consummation of the transactions contemplated hereby and, except as disclosed in the Pricing
Prospectus, the Pricing Disclosure Package and the Prospectus, no person has the right to
require registration under the 1933 Act of any shares of the Common Stock of the Company or
other securities of the Company.
38
ANNEX D
September __, 2007
Xxxxxx, Xxxxxxxx & Company, Incorporated
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Re: Healthcare Realty Trust Incorporated
Ladies and Gentlemen:
We have acted as special tax counsel to Healthcare Realty Trust Incorporated, a Maryland
corporation (the “Company”), in connection with the offering and sale of 2,400,000 shares of common
stock, par value $0.01 per share, of the Company (the “Offering”). The Offering is described more
fully in the final prospectus supplement dated September ___, 2007 (the “Prospectus Supplement”) and
the accompanying prospectus dated December 9, 2004 (together with the Prospectus Supplement, the
“Prospectus”) that form part of the Company’s effective registration statement on Form S-3 (Reg.
No. 333-120595) (the “Registration Statement”). This opinion letter is being delivered to you in
connection with Section 6(c) of the Underwriting Agreement dated September [___], 2007 (the
“Underwriting Agreement”), by and among the Company and Xxxxxx, Xxxxxxxx & Company, Incorporated on
behalf of itself and as Representative of the other Underwriters.
We are required by IRS Circular 230 to inform you that this opinion letter was not intended or
written to be used, and it cannot be used, nor relied upon, by any taxpayer, including, without
limitation, you or the Company, for the purpose of avoiding any penalties that may be imposed under
federal tax law. This opinion letter was written to support the promotion or marketing of the
transactions or matters addressed herein. Each taxpayer should seek advice based on its particular
circumstances from an independent tax advisor.
The opinions set forth in this letter are based on relevant current provisions of the Internal
Revenue Code of 1986, as amended (the “Code”), Treasury Regulations thereunder (including proposed
and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court
decisions, applicable legislative history, and the administrative rulings and practices of the
Internal Revenue Service (the “IRS”), including its practices and policies in issuing private
letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives
such a ruling, all as of the date hereof. These provisions and interpretations are subject to
change, which may or may not be retroactive in effect, and which might result in material
modifications of our opinions. Our opinions do not foreclose the possibility of a contrary
determination by the IRS or a court of competent jurisdiction, or of a contrary position taken by
the IRS or the Treasury Department in regulations or rulings issued in the future. In this regard,
an opinion of counsel with respect to an issue represents counsel’s best professional judgment with
respect to the outcome on the merits with respect to such issue, if such issue were to be
litigated, but an opinion is not binding on the IRS or the courts, and is not a guarantee that the
IRS will not assert a contrary position with respect to such issue or that a court will not sustain
such a position asserted by the IRS.
39
In rendering the opinions expressed herein, we have examined and relied on the following
documents:
1. Schedules prepared and delivered by officials of the Company setting forth:
(a) Real estate investment trust (“REIT”) taxable and gross income for the fiscal year ended
December 31, 2006, together with a schedule of actual dividends distributed and projected dividends
to be distributed in accordance with Code Section 858 and compliance with the distribution
requirements of Code Section 857(a); and
(b) Compliance with the applicable REIT ratios or tests for the fiscal year ended December 31,
2006, including:
Income tests:
(1) 95% gross income test for the year; and
(2) 75% gross income test for the year.
(2) 75% gross income test for the year.
Asset tests:
(1) 75% asset test at the end of each quarter;
(2) 25% asset test at the end of each quarter;
(3) 10% asset test at the end of each quarter; and
(4) 5% asset test at the end of each quarter.
(2) 25% asset test at the end of each quarter;
(3) 10% asset test at the end of each quarter; and
(4) 5% asset test at the end of each quarter.
2. Schedules prepared and delivered by officials of the Company setting forth for all taxable
years of the Company since and including the first year with respect to which the Company elected
REIT status, the information described in paragraph 1 above and including, for taxable years prior
to that ended December 31, 1998, the 30% gross income test.
3. The Company’s certificate, dated September ___, 2007 (the “Certificate”).
4. The Registration Statement (including the Prospectus).
In addition, we have examined such additional records, documents, certificates and other
instruments and made such investigations of fact and law as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. Any material variation or
difference in the facts from those set forth in the documents that we have reviewed and upon which
we have relied (including, in particular, the Certificate) may adversely affect the conclusions
stated herein.
In our examination of the foregoing documents, we have assumed, with your consent, that
(i) all of the representations and statements set forth in the documents (including, without
limitation, the Certificate) we reviewed are true and correct, and all of the obligations imposed
by any such documents on the parties thereto have been and will be performed or satisfied in
accordance with their terms; (ii) the genuineness of all signatures, the proper execution of all
documents, the authenticity of all documents submitted to us as originals, the conformity to
originals of documents submitted to us as copies, and the authenticity of the originals from which
any copies were made; (iii) the Company at all times will operate in accordance with its past and
proposed method of operation as described in its filings with the
Securities and Exchange Commission under the Securities Act of 1933 and the Securities
Exchange Act of 1934, as amended and as described in the Certificate; (iv) the Company is a validly
organized and duly
40
incorporated corporation under the laws of the State of Maryland; and (v) any
“Excess Shares” (defined in the Company’s Second Articles of Amendment and Restatement to be shares
of a value exceeding 9.9% in value of the outstanding shares of the Company) held or deemed held by
any person (pursuant to applicable rules of attribution) are deemed to have no value or voting
rights.
Based upon, subject to, and limited by the assumptions and qualifications set forth herein, we
are of the opinion that:
(A) the Company was and is organized in conformity with the requirements for qualification as
a REIT under the Code and its current method of operation as described in the Registration
Statement (including the Prospectus) and the Certificate permits it to meet the requirements for
qualification and taxation as a REIT under the Code for the current and subsequent taxable years;
and
(B) with respect to the taxable years of the Company ended December 31, 1993, through December
31, 2006, the Company met the requirements for qualification and taxation as a REIT under the Code.
The opinions set forth above represent our conclusions based upon the documents, facts,
representations and assumptions referred to above. Any material amendments to such documents,
changes in any significant facts or inaccuracy of such representations or assumptions could affect
the opinions referred to herein. Moreover, the Company’s qualification and taxation as a REIT
under the Code depends upon the ability of the Company to meet for each taxable year, through
actual annual operating results, requirements under the Code regarding gross income, assets,
distributions and diversity of stock ownership. We have not undertaken, and will not undertake, to
review the Company’s compliance with these requirements on a continuing basis. Accordingly, no
assurance can be given that the actual results of the Company’s operations, the sources of its
income, the nature of its assets, the level of its distributions to shareholders and the diversity
of its share ownership for any given taxable year will satisfy the requirements under the Code for
qualification and taxation as a REIT. Although we have made such inquiries and performed such
investigations as we have deemed necessary to fulfill our professional responsibilities as special
tax counsel and nothing has come to our attention which calls into question the accuracy of the
facts referred to herein or the representations set forth in the Certificate, we have not
undertaken an independent investigation of all of the facts referred to in this opinion letter or
the Certificate.
This opinion letter addresses only the specific federal income tax matters set forth above and
does not address any other federal, state, local or foreign tax issues. This opinion letter has
been prepared for your use in connection with the Offering, and speaks as of the date hereof. This
opinion letter may not be relied upon by any person other than you or for any other purpose without
our prior written consent. We assume no obligation by reason of this opinion letter to advise you
of any changes in our opinions subsequent to the delivery of this opinion letter but agree to do so
from time to time upon specific request from you for an update or confirmation.
Very truly yours,
41
ANNEX E
Material Subsidiaries
1. Healthcare Realty Trust Incorporated
2. HRT Properties of Texas, Ltd.
3. HR Acquisition I Corporation
4. HRT of Tennessee Inc.
5. HR Acquisition of San Antonio, Ltd.
6. HR Acquisition of Pennsylvania, Inc.
7. Pennsylvania HRT, Inc.
8. HRT of Roanoke, Inc.
9. HR of Las Vegas, Ltd.
10. HRT of Illinois, Inc.
11. HR of Los Angeles, Ltd.
12. HRT of Alabama Inc.
14. HR of Sarasota, Ltd.
15. HR Acquisition of Alabama, Inc.
16. HR Assets, LLC
17. Xxxxxx-Xxxxxxx Clinic SPE, LLC
42
ANNEX F
Form of Lock-up Letter
Xxxxxx, Xxxxxxxx & Company, Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms propose to enter into an
Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by you and such
other firms (together, the “Underwriters”) of shares of common stock, $0.01 par value per share
(the “Common Stock”), of Healthcare Realty Trust Incorporated and that the Underwriters propose to
reoffer such shares to the public (the “Offering”).
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees that during a period of 90 days from the date of the
Underwriting Agreement, the undersigned will not, without the prior written consent of Xxxxxx,
Xxxxxxxx & Company, Incorporated, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into
any swap or other agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise
or (iii) make any demand for or exercise any right with respect to the registration of any shares
of Common Stock or any security convertible into or exchangeable for shares of Common Stock, except
that the undersigned may (x) exercise options or warrants to purchase the Company’s Common Stock,
which options have been issued as of the date hereof, (y) cause the conversion of a security
outstanding on the date hereof into Common Stock and (z) make such transfers or dispositions
pursuant to any employee stock purchase or other benefit plan in existence on the date hereof or
pursuant to the Company’s Dividend Reinvestment Plan.
The undersigned agrees that the provisions of this agreement will be binding also upon the
successors, assigns, heirs and personal representatives of the undersigned.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby
authorized to decline to make any transfer of shares of Common Stock if such transfer would
constitute a violation or breach of this agreement.
It is understood that if the Underwriting Agreement is not executed, or if the Underwriting
Agreement (other than any provisions thereof that survive termination) shall
43
terminate or be
terminated prior to consummation of the Offering, the undersigned will be automatically released,
without further action by you or the undersigned, from all obligations under this agreement.
Very truly yours, |
||||
(Name) | ||||
(Print Name) | ||||
44
ANNEX G
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx, Xx.
B. Xxxxxxx Xxxxxxx, XX
Xxxxx X. Xxxxx, Ph.X.
Xxxxxxx Xxxxxxx Xxxxxxxxx, M.D.
Xxxxx X. Xxxxxxx, Xx.
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx III*
Xxxx Xxxx Xxxxxxxxx
Xxxxx X. Xxxxxxxx
Xxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx, Xx.
B. Xxxxxxx Xxxxxxx, XX
Xxxxx X. Xxxxx, Ph.X.
Xxxxxxx Xxxxxxx Xxxxxxxxx, M.D.
Xxxxx X. Xxxxxxx, Xx.
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx III*
Xxxx Xxxx Xxxxxxxxx
Xxxxx X. Xxxxxxxx
Xxx X. Xxxxxxx
* Company and Stifel agree that delivery at closing is not required if Company cannot obtain by
closing. The Company undertakes to exercise reasonable diligence to obtain and deliver an executed
“lock-up” agreement for Xx. Xxxxxx as soon as reasonably practicable.
45