APARTMENT INVESTMENT AND MANAGEMENT COMPANY CLASS A COMMON STOCK (PAR VALUE $.01 PER SHARE) EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.3
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
CLASS A COMMON STOCK
(PAR VALUE $.01 PER SHARE)
Dated: May 24, 2010
TABLE OF CONTENTS
| Page | ||||
SECTION 1. Description of Securities |
1 | |||
SECTION 2. Placements |
2 | |||
SECTION 3. Sale of Placement Securities by Xxxxx Fargo |
3 | |||
SECTION 4. Suspension or Termination of Sales |
3 | |||
SECTION 5. Representations and Warranties |
4 | |||
SECTION 6. Sale and Delivery to Xxxxx Fargo; Settlement |
18 | |||
SECTION 7. Covenants of the Company and the Operating Partnership |
21 | |||
SECTION 8. Payment of Expenses |
28 | |||
SECTION 9. Conditions of Xxxxx Fargo’s Obligations |
29 | |||
SECTION 10. Indemnification |
31 | |||
SECTION 11. Contribution |
33 | |||
SECTION 12. Representations, Warranties and Agreements to Survive Delivery |
35 | |||
SECTION 13. Termination of Agreement |
35 | |||
SECTION 14. Notices |
36 | |||
SECTION 15. Parties |
36 | |||
SECTION 16. Governing Law and Time |
36 | |||
SECTION 17. Effect of Headings |
36 | |||
SECTION 18. Definitions |
36 | |||
SECTION 19. Permitted Free Writing Prospectuses |
38 | |||
SECTION 20. Absence of Fiduciary Relationship |
38 | |||
SECTION 21. Adjustment for Share Splits |
39 | |||
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EXHIBITS
Exhibit A Form of Placement Notice |
Exhibit B Authorized Individuals for Placement Notices |
Exhibit C Form of Officers’ Certificate |
Exhibit D-1 Form of Opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP |
Exhibit D-2 Form of Opinion of DLA Piper LLP (US) |
Exhibit E Form of Chief Financial Officer’s Certificate |
Exhibit F Permitted Free Writing Prospectus |
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Apartment Investment and Management Company
(a Maryland corporation)
Class A Common Stock
(Par Value $.01 Per Share)
May 24, 2010
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Apartment Investment and Management Company, a Maryland corporation (the “Company”),
and AIMCO Properties, L.P., a Delaware limited partnership (the “Operating Partnership”),
of which the Company’s wholly-owned subsidiary, AIMCO-GP, Inc., a Delaware corporation (the “OP
General Partner”), is the sole general partner, each confirms its agreement (this
“Agreement”) with Xxxxx Fargo Securities, LLC (“Xxxxx Fargo”), as follows:
SECTION 1. Description of Securities.
Each of the Company and the Operating Partnership agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth herein, the Company
may issue and sell through Xxxxx Fargo, acting as agent and/or, at the option of the Company,
principal, up to 7,000,000 shares (the “Securities”) of the Company’s Class A Common Stock,
par value $.01 per share (the “Common Stock”). Notwithstanding anything to the contrary
contained herein, the parties hereto agree that compliance with the limitations set forth in this
Section 1 regarding the aggregate number of Securities issued and sold under this Agreement shall
be the sole responsibility of the Company, and Xxxxx Fargo shall have no obligation in connection
with such compliance. The issuance and sale of the Securities through Xxxxx Fargo will be effected
pursuant to the Registration Statement (as defined below) that was filed by the Company and became
effective upon filing under Rule 462(e) (as defined below), although nothing in this Agreement
shall be construed as requiring the Company to use the Registration Statement to issue the
Securities. The Company hereby reserves the right to issue and sell securities other than through
or to Xxxxx Fargo during the term of this Agreement.
The Company has filed, in accordance with the provisions of the Securities Act, with the
Securities and Exchange Commission (the “Commission”) an automatic shelf registration
statement on Form S-3 (File No. 333-150341-01), including a base prospectus, relating to certain
securities, including the Common Stock, and which incorporates by reference documents that the
Company has filed or will file in accordance with the provisions of the Securities Exchange Act of
1934 and the rules and regulations thereunder (collectively, the “Exchange Act”). The
Company has prepared a prospectus supplement to the base prospectus included as part of such
registration statement, which Prospectus Supplement specifically relates to the Securities (the
“Prospectus Supplement”). The Company will furnish to Xxxxx Fargo, for use by Xxxxx Fargo,
copies (which may be electronic form) of the prospectus included as part of such registration
statement, as supplemented by the Prospectus Supplement, relating to the Securities. Except where
the context otherwise requires, such registration statement, as amended when it became effective,
including all documents filed as part thereof or incorporated by reference therein, and including
any information contained in a Prospectus (as defined below) subsequently filed with the Commission
pursuant to Rule 424(b) or deemed to be a part of such registration statement pursuant to Rule 430B
(the “Rule 430B Information”), is herein called the “Registration Statement.” The
Registration Statement at the time it originally became effective is herein called the
“Original Registration Statement.” The base prospectus, including all documents
incorporated therein by reference, included in the Registration Statement, as it may be
supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus
Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b)
is herein called the “Prospectus.” Any reference herein to the Registration Statement, the
Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be
deemed to refer to and include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to XXXXX (as defined below).
The Company and the Operating Partnership have also entered into separate equity distribution
agreements (collectively, the “Alternative Distribution Agreements”), dated as of even date
herewith, with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and KeyBanc Capital Markets Inc.
(each, an “Alternative Manager”). The aggregate number of Securities that may be sold from
time to time pursuant to this Agreement and the Alternative Distribution Agreements shall not
exceed 7,000,000 shares of Common Stock (the “Maximum Amount”).
SECTION 2. Placements.
Each time that the Company wishes to issue and sell the Securities hereunder (each, a
“Placement”), it will notify Xxxxx Fargo by email notice (or other method mutually agreed
to in writing by the parties) containing the parameters in accordance with which it desires the
Securities to be sold (a “Placement Notice”), which shall at a minimum include the number
of Securities to be issued (the “Placement Securities”), the time period during which
sales are requested to be made (which period shall not exceed five business days), any limitation
on the number of Securities that may be sold in any one day and any minimum price below which sales
may not be made, a form of which is attached hereto as Exhibit A. The Placement
Notice shall
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originate from any of the individuals from the Company set forth on Exhibit B
(with a copy to each of the other individuals from the Company listed on such schedule), and shall
be addressed to each of the individuals from Xxxxx Fargo set forth on Exhibit B, as such
Exhibit B may be amended from time to time.
A Placement Notice shall be effective unless and until (i) Xxxxx Fargo declines to accept the
terms contained therein for any reason, in its sole discretion, (ii) all Placement Securities have
been sold, (iii) the Company suspends or terminates the sale of the Placement Securities in
accordance with Section 4 below, (iv) the Company issues a subsequent Placement Notice with
parameters superseding those on the earlier dated Placement Notice, or (v) this Agreement has been
terminated under the provisions of Section 13. The compensation payable by the Company to Xxxxx
Fargo, when Xxxxx Fargo is acting as agent, in connection with the sale of the Placement Securities
shall be equal to 2.00% of the gross sales price of the Placement Securities sold pursuant to this
Agreement.
The amount of any commission, discount or other compensation to be paid by the Company to
Xxxxx Fargo, when Xxxxx Fargo is acting as principal, in connection with the sale of the Placement
Securities shall be as separately agreed among the parties hereto at the time of any such sales.
It is expressly acknowledged and agreed that neither the Company nor Xxxxx Fargo will have any
obligation whatsoever with respect to a Placement or any Placement Securities unless and until the
Company delivers a Placement Notice to Xxxxx Fargo and Xxxxx Fargo does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon the terms specified therein and
herein. In the event of a conflict between the terms of this Agreement and the terms of a
Placement Notice, the terms of the Placement Notice will control.
SECTION 3. Sale of Placement Securities by Xxxxx Fargo.
Subject to the provisions of Section 6(a), Xxxxx Fargo, for the period specified in the
Placement Notice, will use its commercially reasonable efforts consistent with its normal trading
and sales practices to sell the Placement Securities at market prevailing prices up to the amount
specified in, and otherwise in accordance with the terms of, such Placement Notice. Xxxxx Fargo
will provide written confirmation to the Company promptly upon making any sale of Placement
Securities hereunder, and in no event later than the opening of the Trading Day (as defined below)
immediately following the Trading Day on which it has made sales of Placement Securities hereunder,
setting forth the number of Placement Securities sold on such day, the compensation payable by the
Company to Xxxxx Fargo pursuant to Section 2 with respect to such sales, and the Net Proceeds (as
defined below) payable to the Company, with an itemization of the deductions made by Xxxxx Fargo
(as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. Subject
to the terms of the Placement Notice, Xxxxx Fargo may sell Placement Securities by any method
permitted by law deemed to be an “at the market offering” as defined in Rule 415, including without
limitation sales made directly on the NYSE, on any other existing trading market for the Common
Stock or to or through a market maker. Subject to the terms of the Placement Notice, Xxxxx Fargo
may also sell Placement Securities by any other method permitted by law, including but not limited
to privately negotiated transactions. For the
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purposes hereof, “Trading Day” means any day on which Common Stock is purchased and
sold on the principal market on which the Common Stock is listed or quoted.
SECTION 4. Suspension or Termination of Sales. The Company or Xxxxx Fargo may, upon
notice to the other party in writing (including by email correspondence to each of the individuals
of the other party set forth on Exhibit B, if receipt of such correspondence is actually
acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to
each of the individuals of the other party set forth on Exhibit B), suspend or terminate
any sale of Placement Securities; provided, however, that such suspension or
termination shall not affect or impair either party’s obligations with respect to any Placement
Securities sold hereunder prior to the receipt of such notice. Each of the parties agrees that no
such notice under this Section 4 shall be effective against the other unless it is made to one of
the individuals named on Exhibit B hereto, as such Exhibit B may be amended from
time to time.
SECTION 5. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating Partnership. The Company
and the Operating Partnership each severally represents and warrants to Xxxxx Fargo as of the date
hereof, as of each Representation Date (as defined below) on which a certificate is required to be
delivered pursuant to Section 7(n) of this Agreement, as of each Applicable Time (as defined below)
and, to the extent set forth expressly in this Section 5(a), as of each Settlement Date, and agrees
with Xxxxx Fargo, as follows:
(1) Status as a Well-Known Seasoned Issuer; Registration Statement Effective;
Conform to Securities Act; No Misleading Statements; Conformity with XXXXX filings. (A)
At the time of filing the Original Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus, (C) at the
date hereof and (D) at each Settlement Date, the Company was, is and will be a “well-known
seasoned issuer” as defined in Rule 405, including not having been and not being an
“ineligible issuer,” as defined in Rule 405. The Registration Statement is an “automatic
shelf registration statement,” as defined in Rule 405, and the Securities, since their
registration on the Registration Statement, have been and remain eligible for registration
by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not
received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act
objecting to the use of the automatic shelf registration statement form. As of the date
hereof and at each relevant Applicable Time and at each relevant Settlement Date, the
Company has paid, or if the Prospectus Supplement has not yet been filed with the Commission
will pay, the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including,
if applicable, by updating the “Calculation of Registration Fee” table in accordance with
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Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on
the cover page of the Prospectus Supplement).
The Original Registration Statement became effective under Rule 462(e) upon receipt of
filing by the Commission on April 21, 2008, and any post-effective amendment thereto also
became effective upon filing under Rule 462(e). As of the date hereof and each relevant
Applicable Time and each relevant Settlement Date, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company or the Operating Partnership, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c)) has been filed (unless
exempt from filing pursuant to Rule 163) with the Commission in accordance with the
exemption provided by Rule 163 and otherwise complied with the requirements of Rule 163,
including without limitation the legending requirement, to qualify such offer for the
exemption from Section 5(c) of the Securities Act provided by Rule 163.
At the respective times the Original Registration Statement and any amendment thereto
became effective, at each deemed effective date with respect to Xxxxx Fargo and the
Securities pursuant to Rule 430B(f)(2), at the date hereof, at each relevant Applicable Time
and at each relevant Settlement Date, the Registration Statement complied, complies and will
comply in all material respects with the requirements of the Securities Act, and did not and
will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.
The Prospectus and each amendment or supplement thereto, if any, at the time the
Prospectus or any such amendment or supplement is issued and at the date hereof, at each
relevant Applicable Time and at each relevant Settlement Date, complied, complies and will
comply in all material respects with the requirements of the Securities Act and neither the
Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued, or at the date hereof, at each relevant Applicable Time
or at any Settlement Date, included, includes or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of
the date hereof, each relevant Applicable Time and each relevant Settlement Date, or until
any earlier date that the issuer notified or notifies Xxxxx Fargo as described in Section
7(d), did not, does not and will not (i) include any information that conflicted,
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conflicts or will conflict with the information contained in the Registration Statement
or the Prospectus or (ii) when taken together with the Prospectus, include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
Each Prospectus delivered to Xxxxx Fargo for use in connection with the offering of any
Securities was identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
The representations and warranties in this Section 5(a)(1) shall not apply to
statements in or omissions from the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus made in reliance upon and in conformity with written information
furnished to the Company by Xxxxx Fargo or the Alternative Managers expressly for use
therein, provided that the parties hereby agree that the only such information in the
Prospectus is that set forth in the eighth paragraph with regard to affiliates of Xxxxx
Fargo and the Alternative Managers under the caption “Plan of Distribution” in the
Prospectus Supplement, and Xxxxx Fargo hereby consents to the use in the Prospectus of such
information.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement or the Prospectus (the
“Incorporated Documents”), when they became effective or at the time they were or
hereafter are filed with the Commission, complied, comply and will comply in all material
respects with the requirements of the Exchange Act and, when read together with the other
information in the Registration Statement or the Prospectus, (a) at the time the Original
Registration Statement became effective, (b) with respect to any offering of Placement
Securities, at the earlier of the time the Prospectus was first used and the date and time
of the first contract of sale of such Placement Securities, (c) at each relevant Applicable
Time and each relevant Settlement Date and (d) on the date of this Agreement, did not and
will not include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(3) Independent Accountants. The accounting firm that certified the financial
statements and supporting schedules incorporated by reference in the Registration Statement
and the Prospectus is an independent registered public accounting firm as required by the
Securities Act, the Exchange Act and the Public Company Accounting Oversight Board (United
States) (“PCAOB”).
(4) Financial Statements; Non-GAAP Financial Measures. The financial
statements of the Company and its consolidated Subsidiaries (as defined below) set forth in
or incorporated by reference in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly the financial position, results of
operations and cash flows of the Company and its consolidated Subsidiaries at the dates
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and for the periods specified, and, except as disclosed in the notes thereto, such
financial statements have been prepared in conformity with U.S. generally accepted
accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, set forth in or incorporated by reference in
the Registration Statement or the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. Any selected historical operating and financial
data set forth in or incorporated by reference in the Registration Statement or the
Prospectus present fairly in all material respects the information shown therein and have
been compiled on a basis consistent with the books and records of the Company and that of
the audited financial statements set forth in or incorporated by reference in the
Registration Statement or the Prospectus. The financial statements of the businesses or
properties acquired or proposed to be acquired, if any, included in, or incorporated by
reference into, the Registration Statement or the Prospectus present fairly in all material
respects the information set forth therein, have been prepared in conformity with GAAP
applied on a consistent basis and otherwise have been prepared in accordance with the
applicable financial statement requirements of Rule 3-05 or Rule 3-14 of Regulation S-X with
respect to real estate operations acquired or to be acquired. In addition, any pro forma
financial statements and the related notes thereto set forth in or incorporated by reference
in the Registration Statement or the Prospectus present fairly in all material respects the
information shown therein, have been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have been properly compiled on
the basis described therein, and the 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; other than as set forth therein, the
Company is not required to include any financial statements or pro forma financial
statements in the Registration Statement or the Prospectus under the Securities Act or any
document required to be filed with the Commission under the Exchange Act. All disclosures
contained in the Registration Statement or the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the Commission) comply
with Regulation G and Item 10 of Regulation S-K, to the extent applicable.
(5) No Material Adverse Change in Business. Except as otherwise disclosed in
the Registration Statement and the Prospectus, subsequent to the respective dates as of
which information is given in the Registration Statement or the Prospectus: (A) there has
been no material adverse change in the condition, financial or otherwise, or in the
properties, earnings, business or prospects of the Company, the Operating Partnership and
the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course
of business (a “Material Adverse Effect”), (B) there have been no transactions
entered into by the Company, the Operating Partnership or any Subsidiary, other than those
in the ordinary course of business, which are material with respect to the Company, the
Operating Partnership and the Subsidiaries considered as one enterprise and (C) except for
regular quarterly dividends on the Common Stock in amounts per share that are consistent
with past practice, regular quarterly distributions on the Company’s
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outstanding preferred stock and regular quarterly distributions on the Operating
Partnership’s common OP units, partnership preferred units and high performance partnership
units of limited partnership, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital shares or any distribution
by the Operating Partnership with respect to any of its limited partnership interests.
(6) Good Standing of the Company. The Company has been duly incorporated and
is validly existing as a corporation and is in good standing under the laws of the State of
Maryland, with full corporate power and authority to own and lease its properties and to
conduct its business as described in the Registration Statement and the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is duly
qualified or registered as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(7) Good Standing of the Operating Partnership. The Operating Partnership has
been duly formed and is validly existing as a limited partnership and is in good standing
under the laws of the State of Delaware and has the partnership power and partnership
authority under the Operating Partnership Agreement (as defined below) and the Delaware
Revised Uniform Limited Partnership Act to own, lease and operate its properties and to
conduct the business in which it is engaged as described in the Registration Statement and
the Prospectus and to enter into and perform its obligations under this Agreement. The
Operating Partnership is duly qualified or registered as a foreign partnership to transact
business and is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. The OP General Partner is the sole general partner of the Operating Partnership and
holds such number and/or percentage of common OP units, partnership preferred units and high
performance partnership units of limited partnership interest as disclosed in the
Registration Statement and the Prospectus as of the dates set forth therein, free and clear
of any perfected security interest or any other security interests, claims, liens or
encumbrances. The Fourth Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated as of July 29, 1994, as amended by the First Amendment thereto,
dated as of December 31, 2007, and the Second Amendment thereto, dated as of dated as of
July 30, 2009 (collectively, the “Operating Partnership Agreement”), is in full
force and effect.
(8) Good Standing of Subsidiaries. The only Subsidiaries of the Company that
may constitute a “significant subsidiary” within the meaning of Rule 1-02(w) of
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Regulation S-X are the Subsidiaries listed on Exhibit 21.1 to the Company’s most recent
Annual Report on Form 10-K. Each of the Subsidiaries of the Company or the Operating
Partnership has been duly incorporated or organized and is validly existing as a
corporation, limited partnership, limited liability limited partnership, general partnership
or limited liability company, as applicable, in good standing under the laws of the
jurisdiction in which it is chartered or organized and has the requisite power and authority
to own, lease and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified or registered as a foreign
corporation, limited partnership, general partnership or limited liability company, as
applicable, and is in good standing in the jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of property or the
conduct of business, except in each case where the failure to so qualify or register would
not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. All the outstanding shares of capital stock, partnership interests, limited
liability company interests or other equivalent equity interests of each such Subsidiary
have been duly authorized and validly issued and are fully paid and non-assessable, and,
except (i) as otherwise set forth in each of the Registration Statement and the Prospectus
and (ii) the shares of capital stock, partnership interests, limited liability company
interests or other equivalent equity interests of Subsidiaries that are pledged under (x)
that certain Security Agreement, dated as of November 2, 2004, pursuant to which the
Company, the Operating Partnership and AIMCO/Bethesda Holdings, Inc. (collectively, the
“Borrowers”) granted a security interest in, and pledged, certain collateral to Bank
of America, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) for the lenders under the Amended and Restated Senior Secured Credit Agreement,
dated as of November 2, 2004, among the Borrowers, the financial institutions from time to
time party thereto and the Administrative Agent (as amended, amended and restated,
supplemented or otherwise modified, the “Credit Agreement”), and (y) that certain
Security Agreement, dated as of November 2, 2004 and amended on August 28, 2008 and May 1,
2009, pursuant to which certain subsidiaries of the Borrowers granted a security interest
in, and pledged, certain collateral to the Administrative Agent, all outstanding shares of
capital stock, partnership interests, limited liability company interests or other
equivalent equity interest of the Subsidiaries are owned by the Company or the Operating
Partnership, as applicable, either directly or through Subsidiaries free and clear of any
perfected security interest or any other security interests, mortgages, pledges, liens,
encumbrances, claims in law or in equity, and none of the outstanding shares of capital
stock, partnership interests, limited liability company interests or other equivalent equity
interests of the Subsidiaries were issued in violation of the preemptive or similar rights
of any security of each Subsidiary, except such violations as would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(9) Capitalization. If the Registration Statement or the Prospectus contains a
“Capitalization” section, the authorized, issued and outstanding capital stock of the
Company are as set forth in the column entitled “Actual” under such section (except for
subsequent issuances thereof, if any, contemplated under this Agreement or the
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Alternative Distribution Agreements, pursuant to reservations, agreements or employee
benefit plans referred to in the Registration Statement and the Prospectus or pursuant to
the exercise of convertible securities or options referred to in the Registration Statement
and the Prospectus). At the time the Prospectus or any amendment or supplement thereto is
issued, at the date hereof, at each relevant Applicable Time and at each relevant Settlement
Date, the issued and outstanding shares of Common Stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and none of the
outstanding shares of Common Stock were issued in violation of preemptive or other similar
rights of any security holder of the Company.
(10) Authorization of Units and Preferred Units. All issued and outstanding
common, preferred and high performance units of limited partnership interest have been duly
authorized and validly issued and have been offered and sold or exchanged by the Operating
Partnership in compliance with applicable laws.
(11) Authorization and Description of Securities. The Securities to be sold
through Xxxxx Fargo, as principal or agent, have been duly authorized and reserved for
issuance, sale and delivery pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration provided for herein,
will be validly issued, fully paid and non-assessable. The Securities conform in all
material respects to all statements relating thereto contained in the Registration Statement
and the Prospectus. No holder of the Securities will be subject to personal liability by
reason of being such a holder. The issuance of the Securities is not subject to the
preemptive or other similar rights of any security holder of the Company. The form of
certificate used to evidence the Securities will be in substantially the form to be filed or
incorporated by reference, as the case may be, as an exhibit to the Registration Statement,
and such form complies with all applicable statutory requirements, requirements of the
Company’s Charter, as restated in the Articles of Restatement dated April 21, 1999, as
amended, the Amended and Restated Bylaws of the Company (the “Bylaws”), and
requirements of the NYSE.
(12) Authorization of Agreement. This Agreement and the transactions
contemplated herein have been duly authorized by the Company and the Operating Partnership,
and this Agreement has been duly executed and delivered by the Company and the Operating
Partnership.
(13) Absence of Defaults and Conflicts. None of the Company, the Operating
Partnership or any Significant Subsidiary is (A) in violation of its charter, partnership
agreement, by-laws or other governing instrument (“Governing Instruments”) or (B) in
default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company, the Operating Partnership
or any Significant Subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company, the Operating Partnership or any
Significant Subsidiary is subject (collectively, “Agreements
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and Instruments”), except for such defaults that would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect or (C) in
violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Operating Partnership or any Significant Subsidiary or
any of their assets, properties or operations (“Laws”), except for such violations
that would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and in the Prospectus (including the
issuance and sale of the Securities from time to time pursuant to this Agreement or the
Alternative Distribution Agreements and the use of the aggregate Net Proceeds from the sale
of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and
compliance by the Company and the Operating Partnership with their respective obligations
hereunder have been duly authorized by all necessary corporate or limited partnership action
and do not and will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, the Operating Partnership or any Subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults
or Repayment Events or liens, charges or encumbrances that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the Governing Instruments of the
Company, the Operating Partnership or any Significant Subsidiary or, except as would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, of any Laws. As used herein, a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company, the Operating Partnership or any
Significant Subsidiary.
(14) Absence of Labor Dispute. No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists or, to the knowledge of the
Company or the Operating Partnership, is imminent, which would, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(15) Absence of Proceedings. There is no action, arbitration, suit,
proceeding, inquiry or investigation before or brought by any arbitrator or court or
governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company or the Operating Partnership, threatened, against or affecting the Company, the
Operating Partnership or any Subsidiary, which is required to be disclosed in the
Registration Statement or the Prospectus (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect or which might reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in
- 11 -
this Agreement or the performance by the Company or the Operating Partnership of their
respective obligations hereunder.
(16) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement or the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(17) Possession of Intellectual Property. The Company, the Operating
Partnership and the Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual Property”) necessary to carry on the business
now operated by them, and none of the Company, the Operating Partnership or any Subsidiary
has received any written notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate to protect
the interest of the Company, the Operating Partnership or any Subsidiary therein, 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 reasonably be expected to
result in a Material Adverse Effect.
(18) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
or the Operating Partnership of their respective obligations hereunder, in connection with
the offering, issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have already been obtained or
will be obtained under the Securities Act or as required under state securities laws or the
rules of FINRA.
(19) Possession of Licenses and Permits. Each of the Company, the Operating
Partnership and the Subsidiaries possesses such permits, licenses, approvals, consents and
other authorizations (collectively, “Governmental Licenses”) issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except where failure to possess any such
Governmental Licenses would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect; the Company, the Operating Partnership and the
Subsidiaries are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full force and
effect would not, individually or in the aggregate, result in a Material Adverse Effect;
- 12 -
and none of the Company, the Operating Partnership or any of the Subsidiaries has
received any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which if the subject of an unfavorable decision, ruling or finding,
would, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(20) Title to Property. The Company, the Operating Partnership, the
Subsidiaries and, to the knowledge of the Company, any joint venture that is not a
Subsidiary, in which the Company, the Operating Partnership or any Subsidiary owns an
interest, as the case may be, have good and marketable title to all real property owned by
them, and good title to all other properties owned by them, in each case, free and clear of
all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of
any kind, except (A) such mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances in connection with mortgages entered into in the ordinary
course consistent with past practice, (B) as otherwise stated in the Registration Statement
and the Prospectus or (C) those which would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. Each of the properties of
any of the Company, the Operating Partnership or the Subsidiaries complies with all
applicable codes and zoning laws and regulations except in any case where such
non-compliance would not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; and none of the Company, the Operating Partnership or any
Subsidiary has knowledge of any pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect the size of, use of, improvements on,
construction on, or access to the properties of any of the Company, the Operating
Partnership or any Subsidiary except in any case where such action or proceeding would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. All of the leases and subleases material to the business of the Company, the
Operating Partnership and the Subsidiaries considered as one enterprise, and under which the
Company, the Operating Partnership or any Subsidiary holds properties described in the
Registration Statement and the Prospectus, are in full force and effect, and none of the
Company, the Operating Partnership or any Subsidiary has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the Company, the
Operating Partnership or any Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company, the Operating Partnership or
any Subsidiary of the continued possession of the leased or subleased premises under any
such lease or sublease, except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. To the knowledge of the Company, except as
described in the Registration Statement and the Prospectus, no tenant under any lease to
which the Company, the Operating Partnership or any Subsidiary leases any portion of its
property is in default under such lease, except for any defaults that would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
- 13 -
(21) Title Insurance. Title insurance in favor of the Company, the Operating
Partnership and the Subsidiaries has been obtained with respect to each property owned by
any such entity in an amount that is customary for companies engaged in the same or similar
businesses, except where the failure to maintain such title insurance would not reasonably
be expected to result in a Material Adverse Effect.
(22) Mortgages and Deeds of Trust. The mortgages and deeds of trust
encumbering the properties and assets described in the Registration Statement and the
Prospectus (A) are not convertible (in the absence of foreclosure) into an equity interest
in the property or asset described therein or in the Company, the Operating Partnership or
any Subsidiary, nor does any of the Company, the Operating Partnership or any Subsidiary
hold a participating interest therein, (B) except as set forth in the Registration Statement
and the Prospectus, are not cross-defaulted to any indebtedness other than indebtedness of
the Company or any of the Subsidiaries and (C) are not cross-collateralized to any property
not owned by the Company, the Operating Partnership or any of the Subsidiaries, except, in
each case, as would not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(23) Real Property. To the knowledge of the Company and the Operating
Partnership, the real property of the Company, the Operating Partnership and the
Subsidiaries is free of material structural defects and all building systems contained
therein are in reasonably good working order in all material respects, subject to ordinary
wear and tear or, strategic business decisions regarding maintenance thereof.
(24) Investment Company Act. Neither the Company nor the Operating Partnership
is, or upon the issuance and sale of the Securities from time to time as herein contemplated
and the application of the aggregate Net Proceeds therefrom as described in the Prospectus
will be, an “investment company” as such term is defined in the Investment Company Act.
(25) Environmental Laws. Except as described in the Registration Statement and
the Prospectus or except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (A) none of the Company, the Operating
Partnership or any of the Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental
Laws”), (B) the Company, the Operating Partnership and the Subsidiaries have all
permits, authorizations
- 14 -
and approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the knowledge of the
Company, threatened administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violations, investigations or
proceedings relating to any Environmental Law against the Company, the Operating Partnership
or any of the Subsidiaries and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency, against or
affecting the Company, the Operating Partnership or any of the Subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(26) Registration Statement. Except as described in the Registration Statement
and the Prospectus, no holders of securities or other equity interests of the Company or the
Operating Partnership have rights to have any such securities registered pursuant to the
Registration Statement or in connection with the transactions contemplated by this
Agreement.
(27) NYSE. The outstanding Common Stock and the Securities to be sold by the
Company from time to time hereunder have been or will have been approved for listing,
subject only to official notice of issuance, on the NYSE prior to the delivery of the first
Placement Notice hereunder, and are registered pursuant to Section 12(b) of the Exchange
Act, and the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Securities under the Exchange Act or delisting any such
securities from the NYSE, nor has the Company received any notification that the Commission
or the NYSE is contemplating terminating such registration or listing.
(28) Payment of Taxes. All U.S. federal income tax returns of the Company, the
Operating Partnership and the Subsidiaries required by Law to be filed have been filed and
all taxes shown by such returns, which are due and payable, have been paid. No assessment
in respect of U.S. federal income taxes has been made to date against the Company, the
Operating Partnership or any of the Subsidiaries that would reasonably be expected to result
in a Material Adverse Effect. The Company, the Operating Partnership and the 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 would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, and have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Company, the Operating Partnership and the Subsidiaries,
except for such taxes, if any, as are being contested in good faith or would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. The charges, accruals and reserves on the books of the Company, the Operating
Partnership and the Subsidiaries in respect of any income, partnership 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
- 15 -
determined, except to the extent of any inadequacy that would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(29) Insurance. The Company, the Operating Partnership and the Subsidiaries
carry or are entitled to the benefits of insurance in such amounts and covering such risks
as is customary for companies engaged in the same or similar business, and all such
insurance is in full force and effect. None of the Company, the Operating Partnership or any
Subsidiary has any reason to believe that it will not be able (A) to renew its existing
insurance coverage as and when such policies expire or (B) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not reasonably be expected to result in a Material
Adverse Effect.
(30) Accounting Controls and Disclosure Controls. The Company, the Operating
Partnership and the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed in accordance
with management’s general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as described in the Prospectus, since the
end of the Company’s most recent audited fiscal year, there has been (1) no material
weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (2) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company, the Operating Partnership and the
Subsidiaries employ disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is accumulated and communicated
to the Company’s management, including its principal executive officer or officers and
principal financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
(31) No Commissions. Except as described in the Registration Statement and
Prospectus, none of the Company, the Operating Partnership or any Subsidiary is a party to
any contract, agreement or understanding with any person (other than as contemplated by this
Agreement or the Alternative Distribution Agreements) that would give rise to a valid claim
against the Company, the Operating Partnership or any Subsidiary or Xxxxx Fargo for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale
of the Securities.
(32) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been no failure
on the part of the Company, the Operating Partnership or any Subsidiary or any of
- 16 -
the directors or officers of the Company, the Operating Partnership or any Subsidiary,
in their capacities as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302
and 906 related to certifications.
(33) Permitted Free Writing Prospectus. Neither the Company nor any of its
Subsidiaries has distributed or will distribute any offering material in connection with the
offering and sale of the Securities to be sold hereunder by Xxxxx Fargo as principal or
agent for the Company, other than the Prospectus and any Permitted Free Writing Prospectus
(as defined in Section 18) reviewed and consented to by Xxxxx Fargo.
(34) Actively Traded Security. The shares of Common Stock are “actively traded
securities” excepted from the requirements of Rule 101 of Regulation M under the Exchange
Act by subsection (c)(1) of such rule.
(35) Absence of Manipulation. None of the Company, the Operating Partnership,
any Subsidiary, or, to the knowledge of the Company, any affiliate of the Company has taken,
and none of the Company, the Operating Partnership, any Subsidiary or any affiliate under
the control of the Company will take, directly or indirectly, during the “restricted
period,” as defined with respect to the Company in Rule 100 of Regulation M, any action that
is designed to cause or result in, or which has constituted or which would reasonably be
expected to cause or result in, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(36) REIT Qualification. At the date hereof, at each relevant Applicable Time
and at each relevant Settlement Date, commencing with its taxable year ended December 31,
1994, the Company has been organized and operated in conformity with the requirements for
qualification and taxation as a real estate investment trust (a “REIT”) under the
Internal Revenue Code of 1986, as amended (the “Code”), and the Company’s actual and
proposed method of operation as described in the Registration Statement and the Prospectus
will enable it to continue to meet the requirements for qualification and taxation as a REIT
under the Code. The Operating Partnership will be taxed as a partnership for federal income
tax purposes.
(37) Statistical and Market-Related Data. Any statistical and market-related
data included in the Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate in all material respects, and
the Company has obtained the written consent to the use of such data from such sources,
where required.
(38) Pending Proceedings and Examinations. The Registration Statement is not
the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
Securities Act, and the Company is not the subject of a pending proceeding under
- 17 -
Section 8A of the Securities Act in connection with the offering of the Securities from time to
time pursuant to this Agreement.
(39) Foreign Corrupt Practices Act. None of the Company, the Operating
Partnership or any Significant Subsidiary, nor, to the knowledge of the Company or the
Operating Partnership, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any Significant Subsidiary is aware of or has taken any
action, directly or indirectly, that would reasonably be expected to result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA, and the Company, the Operating Partnership, any Significant Subsidiary and, to the
knowledge of the Company or the Operating Partnership, the Company’s affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(40) Money Laundering Laws. The operations of the Company, the Operating
Partnership and each Significant Subsidiary are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder and any
related or similar applicable rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company, the Operating Partnership, or any Significant
Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company or the Operating Partnership, threatened.
(41) OFAC. None of the Company, the Operating Partnership, any Significant
Subsidiary or, to the knowledge of the Company or the Operating Partnership, any director,
officer, agent, employee, affiliate or person acting on behalf of the Company, the Operating
Partnership or any Significant Subsidiary 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, the Operating Partnership or any Significant Subsidiary
will not directly or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
- 18 -
(b) Certificates. Any certificate signed by any officer of the Company or the Operating
Partnership and delivered to Xxxxx Fargo or to counsel for Xxxxx Fargo shall be deemed a
representation and warranty by the Company or the Operating Partnership, as the case may be, to
Xxxxx Fargo as to the matters covered thereby.
SECTION 6. Sale and Delivery to Xxxxx Fargo; Settlement.
(a) Sale of Placement Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, unless the sale of the
Placement Securities described therein has been declined, suspended or otherwise terminated in
accordance with the terms of this Agreement, Xxxxx Fargo, for the period specified in the Placement
Notice, will use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Securities at market prevailing prices up to the amount specified,
and otherwise in accordance with the terms of such Placement Notice. Each of the Company and the
Operating Partnership acknowledges and agrees that (i) there can be no assurance that Xxxxx Fargo
will be successful in selling Placement Securities, (ii) Xxxxx Fargo will incur no liability or
obligation to the Company, the Operating Partnership or any other person or entity if it does not
sell Placement Securities for any reason other than a failure by Xxxxx Fargo to use its
commercially reasonable efforts consistent with its normal trading and sales practices to sell such
Placement Securities as required under this Section 6 and (iii) Xxxxx Fargo shall be under no
obligation to purchase Securities on a principal basis pursuant to this Agreement, except as
otherwise agreed by Xxxxx Fargo in the Placement Notice.
(b) Settlement of Placement Securities. Unless otherwise specified in the applicable
Placement Notice, settlement for sales of Placement Securities will occur on the third Trading Day
(or such earlier day as is industry practice for regular-way trading) following the date on which
such sales are made (each, a “Settlement Date”). The amount of proceeds to be delivered to
the Company on a Settlement Date against receipt of the Placement Securities sold (the “Net
Proceeds”) will be equal to the aggregate offering price received by Xxxxx Fargo at which such
Placement Securities were sold, after deduction for (i) Xxxxx Fargo’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, (ii) any other
amounts due and payable by the Company to Xxxxx Fargo hereunder pursuant to Section 8(a) hereof and
(iii) any transaction fees imposed by any governmental or self-regulatory organization in respect
of such sales.
(c) Delivery of Placement Securities. On or before each Settlement Date, the Company will, or
will cause its transfer agent to, electronically transfer the Placement Securities being sold by
crediting Xxxxx Fargo’s or its designee’s account (provided Xxxxx Fargo shall have given the
Company written notice of such designee at least one full business day prior to the Settlement
Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by
such other means of delivery as may be mutually agreed upon by the parties hereto, which in all
cases shall be freely tradable, transferable, registered shares in good deliverable form. On each
Settlement Date, Xxxxx Fargo will deliver the related Net Proceeds in same day funds to an account
designated by the Company prior to the Settlement Date. The Company agrees that if the Company, or
its transfer agent (if applicable), defaults in its
- 19 -
obligation to deliver Placement Securities on a Settlement Date, the Company agrees that in
addition to and in no way limiting the rights and obligations set forth in Section 10(a) and
Section 11 hereto, it will hold Xxxxx Fargo harmless against any loss, liability, claim, damage, or
expense whatsoever (including legal fees and expenses), as incurred, arising out of or in
connection with such default by the Company or its transfer agent (if applicable).
(d) Limitations on Offering Size. Under no circumstances shall the Company cause or request
the offer or sale of any Securities, if after giving effect to the sale of such Securities, the
number of Securities or the aggregate offering price of the Securities, as the case may be, sold
pursuant to this Agreement would exceed the lesser of (A) together with all sales of Securities
under this Agreement and each of the Alternative Distribution Agreements, the Maximum Amount and
(B) the amount or number of Securities authorized from time to time to be issued and sold under
this Agreement by the Company and notified to Xxxxx Fargo in writing. Under no circumstances shall
the Company cause or request the offer or sale of any Securities pursuant to this Agreement at a
price lower than the minimum price authorized from time to time by the Company and notified to
Xxxxx Fargo in writing. Further, under no circumstances shall the aggregate number of Securities
sold pursuant to this Agreement and the Alternative Distribution Agreements, including any separate
underwriting or similar agreement covering principal transactions described in Section 1 of this
Agreement and the Alternative Distribution Agreements, exceed the Maximum Amount.
(e) Limitation on Managers. The Company agrees that any offer to sell, any solicitation of an
offer to buy or any sales of Securities shall only be effected by or through only one of Xxxxx
Fargo or an Alternative Manager on any single given day, but in no event more than one, and the
Company shall in no event request that Xxxxx Fargo and one or both of the Alternative Managers sell
Securities on the same day; provided, however, that (a) the foregoing limitation
shall not apply to (i) exercise of any option, warrant, right or any conversion privilege set forth
in the instrument governing such security or (ii) sales solely to employees or security holders of
the Company or its Subsidiaries, or to a trustee or other person acquiring such securities for the
accounts of such persons, (b) such limitation shall not apply on any day during which no sales are
made pursuant to this Agreement and (c) if Xxxxx Fargo or one of the Alternative Managers shall
decline a Placement Notice in accordance with Section 2 hereof, the Company may request that Xxxxx
Fargo or the other Alternative Managers, as applicable, place the Securities covered by such
Placement Notice.
(f) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell
or deliver, or request the offer or sale of, any Securities and, by notice to Xxxxx Fargo given by
telephone (confirmed promptly by facsimile transmission or email), shall cancel any instructions
for the offer or sale of any Securities, and Xxxxx Fargo shall not be obligated to offer or sell
any Securities, (i) during any period in which the Company is, or could be deemed to be, in
possession of material non-public information or (ii) except as provided in Section 6(g) below, at
any time from and including the date (each, an “Announcement Date”) on which the Company
shall issue a press release containing, or shall otherwise publicly announce, its earnings,
revenues or other results of operations (each, an “Earnings Announcement”) through and
including the
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time that is 24 hours after the time that the Company files (a “Filing Time”) a
Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial
statements as of and for the same period or periods, as the case may be, covered by such Earnings
Announcement.
(g) If the Company wishes to offer, sell or deliver Securities at any time during the period
from and including an Announcement Date through and including the time that is 24 hours after the
corresponding Filing Time, the Company shall (i) prepare and deliver to Xxxxx Fargo (with a copy to
its counsel) a Current Report on Form 8-K which shall include substantially the same financial and
related information as was set forth in the relevant Earnings Announcement (other than any earnings
projections, similar forward-looking data and officers’ quotations) (each, an “Earnings
8-K”), in form and substance reasonably satisfactory to Xxxxx Fargo, and obtain the consent of
Xxxxx Fargo to the filing thereof (which shall not be unreasonably withheld or delayed),
(ii) provide Xxxxx Fargo with the officers’ certificate, opinions/letters of counsel and
accountants’ letter called for by Sections 7(n), (o), (p) and (q) hereof, respectively,
(iii) afford Xxxxx Fargo the opportunity to conduct a reasonable due diligence review in accordance
with Section 7(l) hereof and (iv) file such Earnings 8-K with the Commission. If the Company
complies with clauses (i) through (iv) of the preceding sentence, then the provisions of clause
(ii) of Section 6(f) shall not be applicable for the period from and after the time at which the
foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the
time that the relevant Earnings Announcement was first publicly released) through and including the
time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual
Report on Form 10-K under the Exchange Act, as the case may be. For purposes of clarity, the
parties hereto agree that (A) the delivery of any officers’ certificate, opinions/letters of
counsel and accountants’ letter pursuant to this Section 6(g) shall not relieve the Company from
any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or
Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to
deliver officers’ certificates, opinions/letters of counsel and accountants’ letters as provided in
Section 7 hereof and (B) this Section 6(g) shall in no way affect or limit the operation of the
provisions of clause (i) of Section 6(f), which shall have independent application.
SECTION 7. Covenants of the Company and the Operating Partnership. Each of the
Company and the Operating Partnership covenants with Xxxxx Fargo as follows:
(a) Registration Statement Amendments. After the date of this Agreement and during any period
in which a Prospectus relating to any Placement Securities is required to be delivered by Xxxxx
Fargo under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), (i) the Company will notify Xxxxx Fargo promptly of the time when any
subsequent amendment to the Registration Statement, other than documents incorporated by reference,
has been filed with the Commission and/or has become effective or any subsequent supplement to the
Prospectus has been filed and of any comment letter from the Commission or any request by the
Commission for any amendment or supplement to the Registration Statement or Prospectus or for
additional information; (ii) the Company will prepare
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and file with the Commission, promptly upon Xxxxx Fargo’s reasonable request, any amendments
or supplements to the Registration Statement or Prospectus that, in Xxxxx Fargo’s opinion, may be
necessary or advisable in connection with the distribution of the Placement Securities by Xxxxx
Fargo (provided, however, that the failure of Xxxxx Fargo to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect Xxxxx Fargo’s
right to rely on the representations and warranties made by the Company and the Operating
Partnership in this Agreement); (iii) the Company will not file any amendment or supplement to the
Registration Statement or Prospectus, other than documents incorporated by reference, relating to
the Placement Securities or a security convertible into the Placement Securities unless a copy
thereof has been submitted to Xxxxx Fargo within a reasonable period of time before the filing and
Xxxxx Fargo has not objected thereto (provided, however, that the failure of Xxxxx
Fargo to make such objection shall not relieve the Company of any obligation or liability
hereunder, or affect Xxxxx Fargo’s right to rely on the representations and warranties made by the
Company and the Operating Partnership in this Agreement); and (iv) the Company will cause each
amendment or supplement to the Prospectus, other than documents incorporated by reference, to be
filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) (without
reliance on Rule 424(b)(8)).
(b) Notice of Commission Stop Orders. The Company will advise Xxxxx Fargo, promptly after it
receives notice, or obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any
other order preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus, or of the suspension of the qualification of the Placement Securities for offering or
sale in any jurisdiction or of the loss or suspension of any exemption from any such qualification,
or of the initiation or threatening of any proceedings for any of such purposes, or of any
examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement or
if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Securities. The Company will promptly use its commercially
reasonable efforts to prevent the issuance of any stop order, the suspension of any qualification
of the Securities for offering or sale and any loss or suspension of any exemption from any such
qualification, and if any such stop order is issued or any such suspension or loss occurs, to
obtain the lifting thereof as soon as reasonably practicable.
(c) Delivery of Registration Statement and Prospectus. The Company will furnish to Xxxxx
Fargo and its counsel (at the expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus, and any Issuer Free Writing Prospectuses,
that are filed with the Commission during any period in which a Prospectus relating to the
Placement Securities is required to be delivered under the Securities Act, in each case as soon as
reasonably practicable and in such quantities and at such locations as Xxxxx Fargo may from time to
time reasonably request; provided, however, that the Company shall not be required
to furnish any document (other than the Prospectus, which may be delivered in electronic form) to
Xxxxx Fargo to the extent such document is available on XXXXX. The copies of the Registration
Statement and the Prospectus and any supplements or amendments
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thereto furnished to Xxxxx Fargo will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Continued Compliance with Securities Laws. If at any time when a Prospectus is required
by the Securities Act or the Exchange Act to be delivered in connection with a pending sale of the
Placement Securities (including, without limitation, pursuant to Rule 172), any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of counsel for Xxxxx
Fargo or for the Company, to amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not misleading, or if it shall
be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with the requirements of the Securities
Act, the Company will promptly notify Xxxxx Fargo to suspend the offering of Placement Securities
during such period and the Company will promptly prepare and file with the Commission such
amendment or supplement as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the Company will
furnish to Xxxxx Fargo such number of copies of such amendment or supplement, which may be
delivered in electronic form, as Xxxxx Fargo may reasonably request. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with
the information contained in the Registration Statement or the Prospectus or included, includes or
would include an untrue statement of a material fact or omitted, omits or would omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, the Company will promptly notify Xxxxx Fargo to suspend
the offering of Placement Securities during such period and the Company will, subject to
Section 7(a) hereof, promptly amend or supplement such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(e) Blue Sky and Other Qualifications. The Company will use its commercially reasonable
efforts, in cooperation with Xxxxx Fargo, to qualify the Placement Securities for offering and
sale, or to obtain an exemption for the Securities to be offered and sold, under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as Xxxxx Fargo may
reasonably designate and to maintain such qualifications and exemptions in effect for so long as
required for the distribution of the Placement Securities; provided, however, that
the Company shall not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(f) Rule 158. The Company will timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to its security holders as soon as
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practicable an earnings statement for the purposes of, and to provide to Xxxxx Fargo the
benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g) Use of Proceeds. The Company will use the aggregate Net Proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(h) Listing. During any period in which the Prospectus relating to the Placement Securities
is required to be delivered by Xxxxx Fargo under the Securities Act with respect to a pending sale
of the Placement Securities (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), the Company will use its commercially reasonable efforts to cause the
Placement Securities to be listed on the NYSE.
(i) Filings with the NYSE. The Company will timely file with the NYSE all documents and
notices required by the NYSE of companies that have or will issue securities that are traded on the
NYSE.
(j) Notice of Other Sales. During the pendency of any Placement Notice given hereunder, the
Company shall provide Xxxxx Fargo notice as promptly as reasonably possible before it offers to
sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any Common Stock
(other than Placement Securities offered pursuant to the provisions of this Agreement or the
Alternative Distribution Agreements) or securities convertible into or exchangeable for Common
Stock, warrants or any rights to purchase or acquire Common Stock; provided, that such
notice shall not be required in connection with the (i) issuance, grant or sale of Common Stock,
options to purchase Common Stock or Common Stock issuable upon the exercise of options or other
equity awards pursuant to any stock option, stock bonus or other stock or compensatory plan or
arrangement described in the Prospectus, (ii) the issuance of securities in connection with an
acquisition, merger or sale or purchase of assets described in the Prospectus, (iii) the issuance
or sale of Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from
time to time, provided the implementation of such is disclosed to Xxxxx Fargo in advance or (iv)
the issuance of Common Stock in exchange for units of limited partnership interest in the Operating
Partnership.
(k) Change of Circumstances. The Company will, at any time during a fiscal quarter in which
the Company intends to tender a Placement Notice or sell Placement Securities, advise Xxxxx Fargo
promptly after it shall have received notice, or obtained knowledge thereof, of any information or
fact that would alter or affect in any material respect any opinion, certificate, letter or other
document provided to Xxxxx Fargo pursuant to this Agreement.
(l) Due Diligence Cooperation. The Company will cooperate with any due diligence review
conducted by Xxxxx Fargo or its agents in connection with the transactions contemplated hereby,
including, without limitation, providing information and making available documents and senior
officers, during regular business hours and at the Company’s principal offices, as Xxxxx Fargo may
reasonably request upon reasonable notice to the Company.
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(m) Disclosure of Sales. The Company will disclose in its quarterly reports on Form 10-Q, in
its annual report on Form 10-K and/or, in the discretion of the Company, in a Current Report on
Form 8-K, the number of Placement Securities sold through Xxxxx Fargo, the aggregate Net Proceeds
to the Company and the compensation payable by the Company to Xxxxx Fargo with respect to such
Placement Securities.
(n) Representation Dates; Certificates. On the date of this Agreement, each time Securities
are delivered to Xxxxx Fargo as principal on a Settlement Date and:
(1) each time the Company:
| (i) | files the Prospectus relating to the Securities or amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Securities) the Registration Statement or the Prospectus relating to the Securities by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Securities (except as set forth in clauses (ii) through (v) below); | ||
| (ii) | files an Annual Report on Form 10-K under the Exchange Act or any amendment thereto; | ||
| (iii) | files a Quarterly Report on Form 10-Q under the Exchange Act or any amendment thereto; | ||
| (iv) | files an Earnings 8-K or any amendment thereto; or | ||
| (v) | files a report on Form 8-K containing amended financial information, capsule financial information, financial statements, supporting schedules or other financial data (other than information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties as discontinued operations in accordance with Accounting Standards Codification, 205-20 and 360 unless any such Form 8-K relating to the reclassification of certain properties as discontinued operations is deemed to be material by Xxxxx Fargo) under the Exchange Act or any amendment thereto; and |
(2) at any other time reasonably requested by Xxxxx Fargo (each such date of filing of
one or more of the documents referred to in clauses (1)(i) through (v) and any time of
reasonable request pursuant to this Section 7(n) shall be a “Representation Date”),
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the Company shall furnish Xxxxx Fargo with a certificate, in the form attached hereto as
Exhibit C, executed by the Company’s Chief Executive Officer, Chief Financial Officer or
Treasurer and the Company’s Chief Operating Officer, General Counsel, Chief Accounting Officer or
Chief Administrative Officer, promptly and in no event later than three Trading Days after any
Representation Date. The requirement to provide a certificate under this Section 7(n) shall be
waived for any Representation Date occurring at a time at which no Placement Notice is pending,
which waiver shall continue until the earliest to occur of (i) the date the Company delivers a
Placement Notice hereunder (which shall be considered a Representation Date), (ii) the date on
which the Company files the Prospectus relating to the Securities or amends or supplements the
Registration Statement or the Prospectus relating to the Securities by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into
the Registration Statement or the Prospectus relating to the Securities, and (iii) the date on
which the Company files an Annual Report on Form 10-K under the Exchange Act, or any amendment
thereto. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement
Securities following a Representation Date that occurred during the period in which such waiver was
in effect and the Company, in reliance on such waiver, did not provide Xxxxx Fargo with a
certificate under this Section 7(n), then before the Company delivers the Placement Notice or Xxxxx
Fargo sells any Placement Securities, the Company shall provide Xxxxx Fargo with a certificate, in
the form attached hereto as Exhibit C, dated the date of the Placement Notice.
(o) Company Counsel Legal Opinions. On the date of this Agreement, each time Securities are
delivered to Xxxxx Fargo as principal on a Settlement Date, promptly and in no event later than
three Trading Days after each Representation Date with respect to which the Company is obligated to
deliver a certificate in the form attached hereto as Exhibit C for which no waiver is
applicable, and the date of the Placement Notice if such Placement Notice is delivered during a
period for which the waiver described in Section 7(n) was in effect, unless Xxxxx Fargo agrees
otherwise, the Company shall cause to be furnished to Xxxxx Fargo written opinions of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP and DLA Piper LLP (US) (collectively, “Company Counsel”),
or other counsel satisfactory to Xxxxx Fargo, dated the date that the opinion is required to be
delivered, substantially similar to the forms attached hereto as Exhibit D-1 and
Exhibit D-2, respectively, modified, as necessary, to relate to the Registration Statement
and the Prospectus as then amended or supplemented; provided, however, that in lieu of such
opinions for subsequent Representation Dates, any such counsel may furnish Xxxxx Fargo with a
letter (a “Reliance Letter”) to the effect that Xxxxx Fargo may rely on a prior opinion
delivered under this Section 7(o) to the same extent as if it were dated the date of such letter
(except that statements in such prior opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented at such Representation Date).
(p) Xxxxx Fargo Counsel Legal Opinion. On the date of this Agreement, each time Securities
are delivered to Xxxxx Fargo as principal on a Settlement Date, promptly and in no event later than
three Trading Days after each Representation Date with respect to which the Company is obligated to
deliver a certificate in the form attached hereto as Exhibit C for which no waiver is
applicable, and the date of the Placement Notice if such Placement Notice is
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delivered during a period for which the waiver described in Section 7(n) was in effect, Xxxxx
Fargo shall have received the favorable opinion of Xxxxx Day, counsel to Xxxxx Fargo, dated the
date that the opinion is required to be delivered, in customary form and substance reasonably
satisfactory to Xxxxx Fargo, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such matters. In rendering
such opinion, Xxxxx Day may rely as to matters involving the laws of the State of Maryland upon the
opinion of DLA Piper LLP (US) referred to above.
(q) Comfort Letter. On the date of this Agreement, each time Securities are delivered to
Xxxxx Fargo as principal on a Settlement Date, promptly and in no event later than three Trading
Days after each Representation Date with respect to which the Company is obligated to deliver a
certificate in the form attached hereto as Exhibit C for which no waiver is applicable, and
the date of the Placement Notice if such Placement Notice is delivered during a period for which
the waiver described in Section 7(n) was in effect, the Company shall cause its independent
accountants to furnish Xxxxx Fargo a letter (a “Comfort Letter”), dated the date the
Comfort Letter is delivered, in form and substance reasonably satisfactory to Xxxxx Fargo,
(i) confirming that they are an independent registered public accounting firm within the meaning of
the Securities Act, the Exchange Act and the PCAOB, (ii) stating, as of such date, the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered public
offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the
Initial Comfort Letter with any information that would have been included in the Initial Comfort
Letter had it been given on such date, including, but not limited to, if applicable, any financial
information included in an Earnings 8-K, and modified as necessary to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such letter.
(r) Chief Financial Officer Certificate. On the date of this Agreement, each time Securities
are delivered to Xxxxx Fargo as principal on a Settlement Date, and promptly and in no event later
than three Trading Days after each Representation Date with respect to which the Company is
obligated to deliver a certificate in the form attached hereto as Exhibit C for which no
waiver is applicable, and the date of the Placement Notice if such Placement Notice is delivered
during a period for which the waiver described in Section 7(n) was in effect, the Company shall
deliver a certificate of the Company’s Chief Financial Officer (a “CFO Certificate”), dated
the date the CFO Certificate is delivered, substantially in the form attached hereto as Exhibit
E.
(s) Market Activities. Neither the Company nor the Operating Partnership will, directly or
indirectly, during the “restricted period,” as defined with respect to the Company in Rule 100 of
Regulation M, (i) take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities or (ii) sell, bid for,
or purchase the Securities to be issued and sold pursuant to this Agreement, or pay anyone any
compensation for soliciting purchases of the Securities to be issued and sold pursuant to this
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Agreement other than Xxxxx Fargo; provided, however, that the Company may bid
for and purchase its Common Stock in accordance with Rule 10b-18 under the Exchange Act.
(t) Insurance. The Company, the Operating Partnership and the Subsidiaries shall maintain, or
cause to be maintained, insurance in such amounts and covering such risks as is reasonable and
customary for companies engaged in similar businesses in similar industries.
(u) Compliance with Laws. The Company, the Operating Partnership and the Subsidiaries shall
maintain, or cause to be maintained, all material environmental permits, licenses and other
authorizations required by federal, state and local Law in order to conduct their businesses as
described in the Prospectus, and the Company and each of the Subsidiaries shall conduct their
businesses, or cause their businesses to be conducted, in substantial compliance with such permits,
licenses and authorizations and with applicable Environmental Laws, except where the failure to
maintain or be in compliance with such permits, licenses and authorizations would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(v) Investment Company Act. Each of the Company and the Operating Partnership will conduct
its affairs in such a manner so as to ensure that neither the Company nor the Operating Partnership
will be or become, at any time prior to the termination of this Agreement, an “investment company,”
as such term is defined in the Investment Company Act, assuming no change in the Commission’s
current interpretation as to entities that are not considered an investment company.
(w) Securities Act and Exchange Act. The Company will use its commercially reasonable efforts
to comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from
time to time in force, so far as necessary to permit the continuance of sales of, or dealings in,
the Placement Securities as contemplated by the provisions hereof and the Prospectus.
(x) No Offer To Sell. Other than a free writing prospectus (as defined in Rule 405) approved
in advance in writing by the Company and Xxxxx Fargo in its capacity as principal or agent
hereunder, neither Xxxxx Fargo nor the Company (including its agents and representatives, other
than Xxxxx Fargo and the Alternative Managers, in their respective capacities as such) will,
directly or indirectly, make, use, prepare, authorize, approve or refer to any free writing
prospectus relating to the Securities to be sold by Xxxxx Fargo as principal or agent hereunder.
(y) Xxxxxxxx-Xxxxx Act. The Company, the Operating Partnership and the Subsidiaries shall
comply in all material respects with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act.
(z) Regulation M. If the Company has reason to believe that the exemptive provisions set
forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to
the Company or the Common Stock, it shall promptly notify Xxxxx Fargo and
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sales of the Placement Securities under this Agreement shall be suspended until that or other
exemptive provisions have been satisfied in the judgment of each party.
(aa) REIT Treatment. The Company intends to operate in conformity with the requirements for
qualification as a “real estate investment trust” under the Code for each of its taxable years for
so long as the Board of Directors of the Company deems it in the best interests of the Company’s
security holders to remain so qualified.
(bb) Renewal of Registration Statement. The date of this Agreement is not more than three
years subsequent to the initial effective date of the Registration Statement (the “Initial
Effective Date”). If, immediately prior to the third anniversary of the Initial Effective Date
(the “Renewal Date”), this Agreement has not terminated and a prospectus is required to be
delivered or made available by Xxxxx Fargo under the Securities Act or the Exchange Act in
connection with the sale of such Securities, the Company will, prior to the Renewal Date, file, if
it has not already done so, a new shelf registration statement or, if applicable, an automatic
shelf registration statement relating to such Securities, and, if such registration statement is
not an automatic shelf registration statement, will use its best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Date, and will take all other
actions necessary or appropriate to permit the public offer and sale of such Securities to continue
as contemplated in the expired registration statement relating to such Securities. References
herein to the “Registration Statement” shall include such new shelf registration statement or
automatic shelf registration statement, as the case may be.
SECTION 8. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as originally filed and of
each amendment and supplement thereto, (ii) the word processing, printing and delivery to Xxxxx
Fargo of this Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement Securities, (iii) the preparation,
issuance and delivery of the certificates for the Placement Securities to Xxxxx Fargo, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes
payable upon the sale, issuance or delivery of the Placement Securities to Xxxxx Fargo, (iv) the
fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the
qualification or exemption of the Placement Securities under securities laws in accordance with the
provisions of Section 7(e) hereof, including filing fees and the fees and disbursements of counsel
for Xxxxx Fargo in connection therewith and in connection with the preparation of a state
securities law or “blue sky” survey and any supplements thereto, (vi) the printing and delivery to
Xxxxx Fargo of copies of any Permitted Free Writing Prospectus and the Prospectus and any
amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by Xxxxx Fargo to investors, (vii) the preparation, printing and delivery to Xxxxx Fargo
of copies of the state securities law or “blue sky” survey and any supplements thereto, if any, and
any Canadian “wrapper” and any supplements thereto, (viii) the fees and expenses of the custodian
and the transfer agent and registrar for the Securities, (ix) the filing fees incident to,
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and the fees and disbursements of counsel to Xxxxx Fargo in connection with, the review by
FINRA of the terms of the sale of the Securities, if any, (x) the fees and expenses incurred in
connection with the listing of the Placement Securities on the NYSE and (xi) if less than 1,166,667
Securities have been offered and sold under this Agreement and/or the Alternative Distribution
Agreements by the one-year anniversary of this Agreement (or such earlier date on which the Company
terminates this Agreement) (the “Determination Date”), the Company shall reimburse Xxxxx
Fargo and the Alternative Managers for all out-of-pocket expenses, including the fees and
disbursements of counsel incurred by Xxxxx Fargo and the Alternative Managers in connection with
the transactions contemplated by this Agreement, up to a maximum reimbursement to Xxxxx Fargo and
the Alternative Managers of $150,000 in the aggregate (the “Expenses”). Any Expenses shall
be due and payable by the Company within five business days of the Determination Date.
(b) Termination of Agreement. If this Agreement is terminated by Xxxxx Fargo in accordance
with the provisions of Section 9(m) (other than as a result of a failure of the condition set forth
in Section 9(f)) or Section 13(a) hereof, and prior to such termination less than 1,166,667
Securities have been offered and sold under this Agreement and/or the Alternative Distribution
Agreements, then the Company shall reimburse Xxxxx Fargo for all of its out-of-pocket expenses,
including the fees and disbursements of counsel for Xxxxx Fargo, up to a maximum reimbursement to
Xxxxx Fargo and the Alternative Managers of $150,000 in the aggregate.
SECTION 9. Conditions of Xxxxx Fargo’s Obligations. The obligations of Xxxxx Fargo
hereunder with respect to a Placement will be subject to the continuing accuracy and completeness
of the representations and warranties of the Company and the Operating Partnership contained in
this Agreement or in certificates of any officer of the Company or the Operating Partnership
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Payment of Filing Fee. The Registration
Statement shall have become effective and shall be available for (i) all sales of Placement
Securities issued pursuant to all prior Placement Notices and (ii) the sale of all Placement
Securities contemplated to be issued by any Placement Notice. The Company shall have paid the
required Commission filing fees relating to the Securities within the time required by
Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by
updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either
in a post-effective amendment to the Registration Statement or on the cover page of the
Prospectus).
(b) No Material Notices. None of the following events shall have occurred and be continuing:
(i) receipt by the Company, the Operating Partnership or any Subsidiary of any request for
additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the
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response to which would require any post-effective amendments or supplements to the
Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of
any notification with respect to the suspension of the qualification or exemption from
qualification of any of the Placement Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any
material statement made in the Registration Statement or the Prospectus, or any Issuer Free Writing
Prospectus, or any material document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in the Registration
Statement, the Prospectus, or any Issuer Free Writing Prospectus, or such documents so that, in the
case of the Registration Statement, it will not contain any materially untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and, that in the case of the Prospectus and any Issuer Free
Writing Prospectus, it will not contain any materially untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(c) No Misstatement or Material Omission. Xxxxx Fargo shall not have advised the Company that
the Registration Statement or Prospectus, or any Issuer Free Writing Prospectus, or any amendment
or supplement thereto, contains an untrue statement of fact that in Xxxxx Fargo’s opinion is
material, or omits to state a fact that in Xxxxx Fargo’s opinion is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(d) Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s
reports filed with the Commission, there shall not have been any material adverse change to the
condition, financial or otherwise, or in the properties, earnings, business affairs or business
prospects of the Company, the Operating Partnership and its Subsidiaries considered as one
enterprise.
(e) Opinion of Counsel for Company. Xxxxx Fargo shall have received the favorable opinions of
Company Counsel, required to be delivered pursuant to Section 7(o) on or before the date on which
such delivery of such opinion is required pursuant to Section 7(o).
(f) Opinion of Counsel for Xxxxx Fargo. Xxxxx Fargo shall have received the favorable opinion
of Xxxxx Day required to be delivered pursuant to Section 7(p) on or before the date on which the
delivery of such opinion is required pursuant to Section 7(p).
(g) Representation Certificate. Xxxxx Fargo shall have received the certificate required to
be delivered pursuant to Section 7(n) on or before the date on which delivery of such certificate
is required pursuant to Section 7(n).
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(h) Accountant’s Comfort Letter. Xxxxx Fargo shall have received the Comfort Letter required
to be delivered pursuant Section 7(q) on or before the date on which such delivery of such Comfort
Letter is required pursuant to Section 7(q).
(i) Certificate of Chief Financial Officer. Xxxxx Fargo shall have received the CFO
Certificate required to be delivered pursuant Section 7(r) on or before the date on which such
delivery of such CFO Certificate is required pursuant to Section 7(r).
(j) Approval for Listing. The Placement Securities shall have been approved for listing on
the NYSE, subject only to notice of issuance.
(k) No Suspension. Trading in the Securities shall not have been suspended on the NYSE.
(l) Securities Act Filings Made. All filings with the Commission required by Rule 424 under
the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall
have been made within the applicable time period prescribed for such filing by Rule 424.
(m) Termination of Agreement. If any condition specified in this Section 9 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be terminated by Xxxxx
Fargo by notice to the Company, and such termination shall be without liability of any party to any
other party except as provided in Section 8 hereof and except that, in the case of any termination
of this Agreement, Sections 5, 10, 11, 12, 16 and 20 hereof (and all related defined terms) shall
survive such termination and remain in full force and effect.
SECTION 10. Indemnification.
(a) Indemnification by the Company. The Company and the Operating Partnership, jointly and
severally, agree to indemnify and hold harmless Xxxxx Fargo and each person, if any, who controls
Xxxxx Fargo within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act and any director, officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact included in any Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or
- 32 -
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; and
(iii) against any and all expense whatsoever, as incurred (including the reasonable
fees and disbursements of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by Xxxxx Fargo or the Alternative Managers expressly for use
in the Registration Statement (or any amendment thereto), or in any Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto); provided, further, that the parties
hereby agree that the only such information in the Prospectus is that set forth in the eighth
paragraph with regard to affiliates of Xxxxx Fargo and the Alternative Managers under the caption
“Plan of Distribution” in the Prospectus Supplement, and Xxxxx Fargo hereby consents to the use in
the Prospectus of such information.
(b) Indemnification by Xxxxx Fargo. Xxxxx Fargo agrees to indemnify and hold harmless the
Company and the Operating Partnership, each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and any officer, director or employee thereof, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a) of this
Section 10, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto), any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by Xxxxx Fargo expressly for
use therein.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. If any such action is
brought against any indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
- 33 -
to the indemnified party, and after notice from the indemnifying party to the indemnified
party of its election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or parties shall not,
in connection with any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate firm (in addition to
local counsel) for all such indemnified parties (which shall include the Alternative Managers,
unless a conflict or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the Alternative Managers). No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 10 or Section 11 hereof whether
or not the indemnified parties are actual or potential parties thereto, unless (x) such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party and (y) the indemnifying party confirms in writing its indemnification
obligations hereunder with respect to such settlement, compromise or judgment. Notwithstanding
Section 10(a)(ii) hereof, the indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested that an indemnifying party reimburse the indemnified
party for reasonable fees and expenses of counsel as contemplated by this paragraph, the
indemnifying party shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after receipt by the
indemnifying party of such request and (ii) the indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such settlement, unless (A)
such failure to reimburse the indemnified party is based on a dispute with a good faith basis as to
either the obligation of the indemnifying party arising under this Section 10 to indemnify the
indemnified
- 34 -
party or the amount of such obligation and (B) the indemnifying party shall have notified the
indemnified party of such good faith dispute prior to the date of such settlement.
SECTION 11. Contribution. If the indemnification provided for in Section 10 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Operating Partnership, on the one
hand, and Xxxxx Fargo, on the other hand, from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Operating Partnership, on the
one hand, and of Xxxxx Fargo, on the other hand, in connection with the statements or omissions
that resulted in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Operating Partnership, on the one hand,
and Xxxxx Fargo, on the other hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting expenses) received by the
Company bear to the total compensation received by Xxxxx Fargo from the sale of Securities on
behalf of the Company.
The relative fault of the Company and the Operating Partnership, on the one hand, and Xxxxx
Fargo, on the other hand, shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company and the Operating Partnership or by
Xxxxx Fargo and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Each of the Company, the Operating Partnership and Xxxxx Fargo agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable considerations
referred to above in this Section 11. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this Section 11 shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 11, Xxxxx Fargo shall not be required to
contribute any amount in excess of the amount by which the total price at which the Securities sold
by it to the public as agent or principal were offered to the public exceeds the amount of any
- 35 -
damages which Xxxxx Fargo has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 11, each director, officer, employee or affiliate of Xxxxx Fargo
and each person, if any who controls Xxxxx Fargo within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution as Xxxxx Fargo,
and each officer and director of the Company who signed the Registration Statement, and each
person, if any who controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the Company, subject
in each case to the preceding two paragraphs.
For purposes of this Section 11, the Company and the Operating Partnership shall be deemed one
party, jointly and severally liable for any obligations hereunder.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company, the Operating Partnership or any Subsidiary submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any investigation made by or on
behalf of Xxxxx Fargo or controlling person, or by or on behalf of the Company or the Operating
Partnership, and shall survive delivery of the Securities to Xxxxx Fargo.
SECTION 13. Termination of Agreement.
(a) Termination; General. Xxxxx Fargo may terminate this Agreement, by notice to the Company,
as hereinafter specified at any time if (i) upon the reasonable request of Xxxxx Fargo, the Company
does not certify within three Trading Days of receipt of such request that there has not been,
since the time of execution of this Agreement or since the date as of which information is given in
the Prospectus, any material adverse change in the condition, financial or otherwise, or in the
properties, earnings, business or prospects of the Company or the Operating Partnership or
(ii) trading in the Placement Securities has been suspended by the Commission or the NYSE but
trading generally on the NYSE has not been suspended or limited.
(b) Termination by the Company. Subject to Section 13(f) hereof, the Company shall have the
right to terminate this Agreement, by notice to Xxxxx Fargo, in its sole discretion at any time
after the date of this Agreement.
(c) Termination by Xxxxx Fargo. Subject to Section 13(f) hereof, Xxxxx Fargo shall have the
right to terminate this Agreement, by notice to the Company, in its sole discretion at any time
after the date of this Agreement.
- 36 -
(d) Automatic Termination. Unless earlier terminated pursuant to this Section 13, this
Agreement shall automatically terminate upon the issuance and sale of Placement Securities through
Xxxxx Fargo on the terms and subject to the conditions set forth herein that, together with sales
under the Alternative Distribution Agreements, equal the Maximum Amount.
(e) Continued Force and Effect. This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 13(a), (b), (c) or (d) above or otherwise by mutual agreement of
the parties.
(f) Effectiveness of Termination. Any termination of this Agreement shall be effective on the
date specified in such notice of termination; provided, however, that such
termination shall not be effective until the close of business on the date of receipt of such
notice by Xxxxx Fargo or the Company, as the case may be. If such termination shall occur after
the sale of Placement Securities and prior to the Settlement Date, such Placement Securities shall
settle in accordance with the provisions of this Agreement.
(g) Liabilities. If this Agreement is terminated pursuant to this Section 13, such
termination shall be without liability of any party to any other party except as provided in
Section 8 hereof, and except that, in the case of any termination of this Agreement, Sections 5,
10, 11, 12, 16 and 20 hereof (and all related defined terms) shall survive such termination and
remain in full force and effect.
SECTION 14. Notices. Except as otherwise provided in this Agreement, all notices and
other communications hereunder shall be in writing (including by email correspondence if receipt of
such correspondence is actually acknowledged, other than via auto-reply) and shall be deemed to
have been duly given if mailed or transmitted by any standard form of telecommunication. Notices
to Xxxxx Fargo shall be directed to Xxxxx Fargo Securities, LLC, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Department, fax no. (000) 000-0000, email:
xxxxxx.xxxxxxxxx@xxxxxxxxxx.xxx with a copy, which shall not constitute notice, to Xxxxx Day, North
Point, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, fax no. (000)
000-0000, email: xxxxxxxxx@xxxxxxxx.xxx; notices to the Company and the Operating Partnership shall
be directed to them at Apartment Investment and Management Company, 0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx and Xxxx X. Xxxx, fax
no. (000) 000-0000 and (000) 000-0000, email: xxxxx.xxxxxxxx@xxxxx.xxx and xxxx.xxxx@xxxxx.xxx,
respectively, with a copy, which shall not constitute notice, to Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx
X. Xxxxxxxx, fax no. (000) 000-0000, email: xxxxxxxx@xxxxxxx.xxx.
SECTION 15. Parties. This Agreement shall inure to the benefit of and be binding upon
Xxxxx Fargo, the Company, the Operating Partnership and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than Xxxxx Fargo, the Company, the Operating Partnership and their respective
successors and the controlling persons and officers, directors, employees or affiliates
- 37 -
referred to in Sections 10 and 11 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of Xxxxx Fargo, the Company, the Operating Partnership and their respective
successors, and said controlling persons and officers, directors, employees or affiliates and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from Xxxxx Fargo shall be deemed to be a successor by reason merely of such
purchase.
SECTION 16. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 17. Effect of Headings. The Section and Exhibit headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 18. Definitions. As used in this Agreement, the following terms have the
respective meanings set forth below:
“Applicable Time” means the time of each sale of any Securities pursuant to this
Agreement.
“Commission” means the Securities and Exchange Commission.
“XXXXX” means the Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Securities that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show” that is a “written communication” within the
meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (iii) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final terms, and all free writing
prospectuses that are listed in Exhibit F hereto, in each case in the form furnished
(electronically or otherwise) to Xxxxx Fargo for use in connection with the offering of the
Securities.
“NYSE” means the New York Stock Exchange.
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424(b),”
“Rule 430B,” “Rule 433” “Rule 462(e)” refer to such rules under the
Securities Act.
- 38 -
“Securities Act” means the Securities Act of 1933 and the rules and regulations
thereunder.
“Significant Subsidiary” means a “Significant Subsidiary” as defined in Rule 405.
“Subsidiary” means a corporation, general partnership, limited partnership, limited
liability limited partnership, limited liability company or other entity, a majority of the
outstanding voting or capital stock, partnership, membership or other voting or equity interests or
general, limited or limited liability limited partnership interests, as the case may be, of which
is majority owned or controlled, directly or indirectly, by the Company, the Operating Partnership
or one or more other Subsidiaries of the Company or the Operating Partnership. The Operating
Partnership is a Subsidiary of the Company.
All references in this Agreement to financial statements and schedules and other information
that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
All references in this Agreement to the Registration Statement, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to XXXXX; all references in this Agreement to any Issuer Free Writing
Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not
required to be filed with the Commission) shall be deemed to include the copy thereof filed with
the Commission pursuant to XXXXX; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials
prepared in connection with any offering, sale or private placement of any Placement Securities by
Xxxxx Fargo outside of the United States.
SECTION 19. Permitted Free Writing Prospectuses. Each of the Company and the
Operating Partnership represents, warrants and agrees that, unless it obtains the prior consent of
Xxxxx Fargo, and Xxxxx Fargo represents, warrants and agrees that, unless it obtains the prior
consent of the Company, it has not made and will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such
free writing prospectus consented to by Xxxxx Fargo or by the Company, as the case may be, is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents
and warrants that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and record keeping. For the
purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in
Exhibit F hereto are Permitted Free Writing Prospectuses.
- 39 -
SECTION 20. Absence of Fiduciary Relationship. Each of the Company and the Operating
Partnership, severally and not jointly, acknowledges and agrees that:
(a) Xxxxx Fargo is acting solely as agent and/or principal in connection with the public
offering of the Securities and in connection with each transaction contemplated by this Agreement
and the process leading to such transactions, and no fiduciary or advisory relationship among the
Company, the Operating Partnership or any of their respective affiliates, shareholders (or other
equity holders), creditors or employees or any other party, on the one hand, and Xxxxx Fargo, on
the other hand, has been or will be created in respect of any of the transactions contemplated by
this Agreement, irrespective of whether or not Xxxxx Fargo has advised or is advising the Company
and/or the Operating Partnership on other matters, and Xxxxx Fargo has no obligation to the Company
or the Operating Partnership with respect to the transactions contemplated by this Agreement except
the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not
established by Xxxxx Fargo;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;
(d) Xxxxx Fargo has not provided any legal, accounting, regulatory or tax advice with respect
to the transactions contemplated by this Agreement and it has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate;
(e) it is aware that Xxxxx Fargo and its respective affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company and the Operating
Partnership and Xxxxx Fargo has no obligation to disclose such interests and transactions to the
Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or
otherwise; and
(f) it waives, to the fullest extent permitted by law, any claims it may have against Xxxxx
Fargo for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that Xxxxx Fargo
shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in
respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its
behalf or in right of it or the Company, the Operating Partnership, employees or creditors of
Company or the Operating Partnership.
SECTION 21. Adjustment for Share Splits. The parties acknowledge and agree that all
share-related numbers contained in this Agreement shall be adjusted to take into account any share
split, share dividend or similar event effected with respect to the Securities.
[Signature Page Follows]
- 40 -
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among Xxxxx Fargo, the Operating Partnership and the Company in
accordance with its terms.
| Very truly yours, APARTMENT INVESTMENT AND MANAGEMENT COMPANY |
||||||
| By | /s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxxx | |||||
| Title: | Executive Vice President and Chief Financial Officer | |||||
| AIMCO PROPERTIES, L.P. |
||||||
| By: | AIMCO-GP, Inc., | |||||
| Its general partner | ||||||
| By | /s/ Xxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxxx | |||||
| Title: | Executive Vice President and Chief Financial Officer | |||||
| CONFIRMED AND ACCEPTED, as of the date first above written: XXXXX FARGO SECURITIES, LLC |
||||
| By | /s/ Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxxxx | |||
| Title: | Director | |||
EXHIBIT A
FORM OF PLACEMENT NOTICE
From: [ ]
Cc: [ ]
To: [ ]
Subject: Equity Distribution—Placement Notice
Ladies and Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Equity Distribution
Agreement among Apartment Investment and Management Company (the “Company”), AIMCO Properties, L.P.
(the “Operating Partnership”) and Xxxxx Fargo Securities, LLC (“Xxxxx Fargo”), dated May 24, 2010
(the “Agreement”), I hereby request on behalf of the Company that Xxxxx Fargo sell up to [•] of the
Company’s Class A Common Stock, par value $.01 per share, at a minimum market price of $[•] per
share.
The Company hereby confirms that, as of the date of this Placement Notice, neither the
Prospectus, nor any Issuer Free Writing Prospectus, when taken together with the Prospectus,
includes an untrue statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The Company hereby confirms that, as of the date of this Placement Notice, it is
not in possession of any material non-public information.
[ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO
BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY
XXXXX FARGO, AND/OR THE CAPACITY IN WHICH XXXXX FARGO MAY ACT IN SELLING SHARES (AS PRINCIPAL,
AGENT, OR BOTH).]
A-1
