Education Realty Trust, Inc. 24,500,000 Shares of Common Stock (Par Value $.01 Per Share) UNDERWRITING AGREEMENT
Exhibit
1.1
24,500,000 Shares
of Common Stock
(Par
Value $.01 Per Share)
July 22,
2009
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
KeyBanc
Capital Markets Inc.
UBS
Securities LLC
as
Representatives of the several Underwriters
c/o BofA ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Education
Realty Trust, Inc., a Maryland corporation (the “Company”), proposes to sell to
the several underwriters named in Schedule I hereto
(the “Underwriters”), for whom you (the “Representatives”) are acting as
representatives, 24,500,000 shares of Common Stock, $.01 par value per
share (“Common Stock”), of the Company (said shares to be issued and sold by the
Company being hereinafter called the “Firm Securities”). The Company
also proposes to grant to the Underwriters an option to purchase up
to 3,675,000 additional shares of Common Stock to cover any overallotments
(the “Option Securities;” the Option Securities, together with the Firm
Securities, being hereinafter called the “Securities”). To the extent
there are no additional Underwriters listed on Schedule I other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a shelf registration statement on Form S–3 (No. 333–136147), including the
related base prospectus, covering the registration of shares of Common Stock,
shares of preferred stock, depositary shares representing preferred stock and
debt securities under the Securities Act of 1933, as amended (the “1933 Act”),
and the offer and sale thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission promulgated under the 1933 Act (the
“1933 Act Regulations”). Such registration statement has been
declared effective by the Commission. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a prospectus
supplement relating to the Securities in accordance with the provisions of Rule
430B of the 1933 Act Regulations (“Rule 430B”) and paragraph (b) of Rule 424 of
the 1933 Act Regulations (“Rule 424(b)”). Any information included in
such prospectus supplement that was omitted from such registration statement at
the time it became effective but that is deemed to be part of and included in
such registration statement pursuant to Rule 430B is referred to herein as “Rule
430B Information.” The base prospectus and prospectus supplement
filed pursuant to Rule 424(b) used in connection with the offering of the
Securities that omitted Rule 430B Information is referred to herein collectively
as a “preliminary prospectus.” Such registration statement, at any
given time, including any amendments thereto to such time, the exhibits and any
schedules thereto at such time, the documents incorporated or deemed
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act at such time and the documents otherwise deemed to be a part thereof or
included therein by the 1933 Act Regulations, is herein referred to as the
“Registration Statement”; provided, however, that the term
“Registration Statement” shall be deemed to include information contained in the
final prospectus supplement relating to the Securities that is retroactively
deemed to be a part of such registration statement (as amended) as of
the time specified in Rule 430B of the 1933 Act Regulations. The term
“Registration Statement” shall include any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations. The term “Registration Statement”
without reference to a time means the Registration Statement as of the time of
the first contract of sale for the Securities, which time shall be considered
the “new effective date” of the Registration Statement with respect to the
Underwriters and the Securities (within the meaning of Rule
430B(f)(2)). The final base prospectus and the final prospectus
supplement, in the form first filed pursuant to Rule 424(b) in connection with
the offering of the Securities, including the documents incorporated or deemed
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act prior to the time of the execution of this Agreement, are referred to herein
collectively as the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus or the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system or any successor system thereto
(collectively, “▇▇▇▇▇”).
1
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus, the Prospectus or the General Disclosure
Package (as defined herein) (or other references of like import) shall be deemed
to include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in or otherwise deemed by
1933 Act Regulations to be a part of or included in the Registration Statement,
any preliminary prospectus, the Prospectus or the General Disclosure Package, as
the case may be, prior to the execution of this Agreement; and all references in
this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus, the Prospectus or the General Disclosure Package shall
be deemed to include the filing of any document under the Securities Exchange
Act of 1934, as amended (the “1934 Act”), which is or is deemed to be
incorporated by reference in or otherwise deemed by the 1933 Act Regulations to
be a part of or included in the Registration Statement, such preliminary
prospectus, the Prospectus or the General Disclosure Package, as the case may
be.
1. Representations and
Warranties. The Company and Education Realty Operating Partnership, LP, a
Delaware limited partnership (the “Operating Partnership”), jointly and
severally represent and warrant to, and agree with, each Underwriter as of the
date hereof as follows:
(a) The
Company meets the requirements for use of Form S-3 under the 1933
Act. The Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration Statement
or any part thereof has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission or the securities authority of any
jurisdiction. No order preventing or suspending the use of any
preliminary prospectus or the Prospectus has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of the Company, threatened
or contemplated by the Commission or the securities authority of any
jurisdiction. Any request on the part of the Commission for
additional information has been complied with.
At the
respective times the Registration Statement and any post-effective amendments
thereto became effective, at each deemed effective date with respect to the
Underwriters and the Securities pursuant to Rule 430B(f)(2), at the Closing Date
(as defined below) and at each Date of Delivery (as defined in Section 2
hereof), if any, the Registration Statement and any amendments and supplements
thereto complied, complies and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and did not, does 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. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued, at the Closing Date or at any Date of Delivery, included,
includes or will include an untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2
The
preliminary prospectus complied as to form when so filed in all material
respects with the 1933 Act and the 1933 Act Regulations and any such preliminary
prospectus and the Prospectus delivered or made available to the Underwriters
for use in connection with the offering of Securities was and will, at the time
of such delivery, be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
As of the
Applicable Time, each Issuer Free Writing Prospectus (as defined below)
identified on Schedule
II, the Statutory Prospectus (as defined below) and the information
agreed to in writing by the Company and the Underwriters as the information to
be conveyed by the Underwriters to purchasers of the Securities at the
Applicable Time as set forth on Schedule II, all
considered together (collectively, the “General Disclosure Package”), did not
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.
The
representations and warranties in the preceding three paragraphs shall not apply
to statements in or omissions from the Registration Statement, or
any post-effective amendment thereto, or the Prospectus or the
General Disclosure Package, or any amendments or supplements thereto, made in
reliance upon and in conformity with information furnished to the Company in
writing by the Representatives on behalf of the Underwriters expressly for use
therein (that information being limited to that described in the last sentence
of Section 8(b) hereof).
As used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 5:30 p.m. (New York City time) on July 22, 2009 or such
other time as agreed by the Company and the Underwriters.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities
(including any identified on Schedule II hereto)
that (i) is required to be filed with the Commission by the Company, or (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 with the Commission pursuant to Rule 433(d)(5)(i) because
it contains a description of the Securities or of the offering that does not
reflect the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Statutory
Prospectus” as of any time means the base prospectus that is included in the
Registration Statement and the preliminary prospectus supplement relating to the
Securities immediately prior to that time, including the documents incorporated
or deemed incorporated by reference therein at such time.
(b) The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934 Act Regulations”),
as applicable, and, when read together with the other information in the
Registration Statement, the General Disclosure Package or the Prospectus, as the
case may be, (i) at the time the Registration Statement became effective, (ii)
at the earlier of the time the Prospectus was first used and the date and time
of the first contract of sale of the Securities, (iii) at the Closing Date and
(iv) at each Date of Delivery, if any, 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 in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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(c) (i)
at the original effectiveness of the Registration Statement, (ii) at the
earliest time after the original effectiveness of the Registration Statement
that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and
(iii) as of the execution of this Agreement (with such time of execution being
used as the determination date for purposes of this clause (iii)), the Company
was not and is not an “ineligible issuer,” as defined in Rule 405, without
taking account of any determination by the Commission pursuant to Rule 405 that
it is not necessary that the Company be considered an ineligible
issuer.
(d) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until
any earlier date that the Company notified or notifies the Underwriters as
described in Section 5(c) hereof, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the General Disclosure Package or the
Prospectus, including any document incorporated or deemed incorporated by
reference therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any such Issuer Free
Writing Prospectus based upon and in conformity with information furnished to
the Company in writing by the Representatives on behalf of the Underwriters
expressly for use therein (that information being limited to that described in
the last sentence of Section 8(b) hereof).
(e) The
Company is a corporation duly formed and validly existing and in good standing
under the laws of the State of Maryland, with full corporate power and authority
to own or lease, as the case may be, its properties and to operate its
properties and conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified to do
business as a foreign corporation and is in good standing in all other
jurisdictions in which its ownership or lease of property or the operation of
its properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have, or reasonably be expected
to have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), business, earnings, properties, assets or
prospects of the Company, the Operating Partnership and the Subsidiaries (as
defined in Section 1(g) hereof), taken as a whole (“Material Adverse
Effect”).
(f) The
Operating Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing as a foreign limited
partnership in each jurisdiction in which its ownership or lease of property or
the operation of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have, or
reasonably be expected to have, a Material Adverse Effect, and has full power
and authority necessary to own or lease, as the case may be, its properties and
to operate its properties and conduct its business as described in the
Registration Statement, the General Disclosure Package and the Prospectus and to
enter into and perform its obligations under this Agreement. Additionally, the
Company will contribute the net proceeds from the sale of the Firm Securities
and, to the extent any portion of such overallotment option is exercised
subsequent to the Closing Date, the Option Securities to the Operating
Partnership in exchange for a number of common units of limited partnership in
the Operating Partnership (“OP Units”) equal to the number of Firm Securities
and, if applicable, Option Securities issued.
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(g) Each
direct or indirect subsidiary of the Company other than the Operating
Partnership is set forth on Schedule IV hereto
(each, a “Subsidiary” and collectively, the “Subsidiaries”), has been duly
formed and is validly existing as a corporation, limited partnership or limited
liability company, as the case may be, in good standing under the laws of the
jurisdiction of its organization, with full power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as
described in the Registration Statement, the General Disclosure Package and the
Prospectus, except where the failure to be in good standing would not
have, or be reasonably expected to have, a Material Adverse Effect, and is duly
qualified to do business as a foreign corporation, partnership or limited
liability company in good standing in all other jurisdictions in which its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except where the failure to so qualify would not
have, or be reasonably expected to have, a Material Adverse Effect; all of the
issued and outstanding capital stock or other ownership interests of each
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable and were offered in compliance with all applicable laws
(including, without limitation, federal and state securities laws) in all
material respects; the Company is the sole owner of Education Realty OP GP,
Inc., which is the sole general partner of the Operating Partnership, and the
Company, Education Realty OP GP, Inc., Education Realty Limited Partner, LLC,
Education Realty OP Limited Partner Trust, ▇▇▇▇▇ & ▇’▇▇▇▇, Inc., Place
Properties, L.P., and certain officers of the Company and their affiliates
collectively own a percentage interest in the Operating Partnership and the
Company is the sole owner of University Towers OP GP, LLC, which is the sole
general partner of the University Towers Partnership, and the Operating
Partnership, certain officers of the Company and their affiliates and another
unaffiliated individual collectively own a percentage interest in the University
Towers Partnership; except as described in the preceding proviso, each
Subsidiary’s capital stock or other ownership interests are currently owned and
will, immediately following the Closing Date and each Date of Delivery, continue
to be owned by the Company, directly or through subsidiaries, free and clear of
any security interests, liens, mortgages, encumbrances, pledges, claims or other
defects of any kind (collectively, “Liens”), except where such Liens would not
have, or reasonably be expected to have, a Material Adverse
Effect. None of such equity interests were issued in violation of the
preemptive or other similar rights of any securityholder of such
Subsidiary. Except as described in the Registration Statement, the
General Disclosure Package and the Prospectus, there are no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or subscribe for equity
interests or other securities of any Subsidiary. Each of the following
Subsidiaries is a “significant subsidiary” of the Company (as such term is
defined in Rule 1-02 of Regulation S-X under the 1933 Act Regulations) (each, a
“Significant Subsidiary” and collectively, the “Significant Subsidiaries”):
▇▇▇▇▇ & O’ Hara Development Company, LLC, ▇▇▇▇▇ & ▇’▇▇▇▇ Education
Services, Inc., Education Realty OP Limited Partnership Trust and the Operating
Partnership; the aforementioned subsidiaries are the only Significant
Subsidiaries of the Company.
(h) The
capitalization of the Company is as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, as of June 30, 2009, under the
heading “Capitalization” in the column titled “Actual” and in the base
prospectus under the heading “Description of Capital Stock”; the capital stock
of the Company conforms in all material respects to the description thereof
contained in the Registration Statement, the General Disclosure Package and the
Prospectus under the caption “Description of Capital Stock;” the outstanding
shares of Common Stock are duly listed and admitted and authorized for trading
on the New York Stock Exchange, Inc. (the “NYSE”) and, at the Closing Date, the
Securities will have been approved for listing on the NYSE, subject to official
notice of issuance; and, except as set forth in the Registration Statement, the
General Disclosure Package, the Prospectus, the Amended and Restated Agreement
of Limited Partnership of the Operating Partnership, as the same has been or may
be amended and/or restated from time to time (the “Operating Partnership
Agreement”) and the Amended and Restated Agreement of Limited Partnership of
University Towers Operating Partnership, L.P., no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
5
(i) The
Securities and all other outstanding shares of capital stock of the Company,
including any restricted shares of common stock, have been duly and validly
authorized; all outstanding shares of capital stock of the Company are, and,
when the Securities to be issued and sold by the Company have been issued and
delivered and paid for in accordance with this Agreement on the Closing Date and
each Date of Delivery, such Securities will have been, validly issued, fully
paid and nonassessable, will have been, or will be, offered and sold in
compliance with all applicable laws (including, without limitation, federal and
state securities laws) in all material respects, will conform, in all material
respects, to the description thereof contained in the Registration Statement,
the General Disclosure Package and the Prospectus; and the stockholders of the
Company have no preemptive or other similar rights with respect to the
Securities to be issued and sold by the Company. Upon payment of the purchase
price and issuance and delivery of the Securities to be issued and sold by the
Company in accordance herewith, the Underwriters will receive good, valid and
marketable title to such Securities, free and clear of all Liens. The
certificates, if any, to be used to evidence the Securities will be in
substantially the form filed as an exhibit to the Registration Statement and
will, on the Closing Date and each Date of Delivery, be in proper form and will
comply in all material respects with all applicable legal requirements, the
requirements of the charter and by-laws of the Company and the requirements of
the NYSE.
(j) The
outstanding OP Units have been duly authorized for issuance by the Operating
Partnership, and are validly issued. The OP Units have been offered,
issued and sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws) in all material
respects. None of the OP Units were issued in violation of the
preemptive or other similar rights of any securityholder of the Operating
Partnership. Except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, there are no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or subscribe for OP
Units or other securities of the Operating Partnership.
(k) The OP
Units to be issued by the Operating Partnership in connection with the Company’s
contribution of the net proceeds from the sale of the Securities to the
Operating Partnership have been duly authorized for issuance by the Operating
Partnership to the Company, and at the Closing Date for the Firm Securities or
the Date of Delivery for the Option Securities, as applicable, will be validly
issued and fully paid. Such OP Units will be exempt from registration or
qualification under the 1933 Act and applicable state securities laws. None of
the OP Units will be issued in violation of the preemptive or other similar
rights of any securityholder of the Operating Partnership.
(l) Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings between the
Company or the Operating Partnership and any person that would give rise to a
valid claim against the Company or the Operating Partnership or any Underwriter
for a brokerage commission, finder’s fee or other like payment in connection
with this offering.
6
(m) Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the 1933 Act with respect to any securities
or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement.
(n) None of
the Company, the Operating Partnership or the Subsidiaries (i) is in violation
of its charter, declaration of trust, by-laws, certificate of formation,
operating agreement or partnership agreement or similar organizational or
governing documents, (ii) is in default (whether with or without the giving of
notice or passage of time or both) in the performance or observance of any
obligation, agreement, term, covenant or condition contained in a contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
ground lease, development agreement, reciprocal easement agreement, deed
restriction, utility agreement, management agreement or other agreement or
instrument to which it is a party or by which it is bound, or to which any of
the Properties (as hereinafter defined) or any of its other property or assets
is subject (collectively, “Agreements and Instruments”), or (iii) is in
violation of any statute, law, ordinance, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority to which it or the Properties or assets is
subject, except, in the case of clauses (ii) and (iii), for such defaults or
violations that would not have, or reasonably be expected to have, a Material
Adverse Effect.
(o) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required to be made or obtained by the Company,
the Operating Partnership or the Subsidiaries in connection with the
transactions contemplated by this Agreement, except such consents, approvals,
authorizations, filings or orders as have already been obtained or will be
obtained under the 1933 Act or as required under state securities laws or the
rules of the Financial Industry Regulatory Authority (“FINRA”).
(p) The
execution, delivery and performance of this Agreement by the Company and the
Operating Partnership and consummation of the transactions contemplated hereby
do not and will not (whether with or without the giving of notice or passage of
time or both) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default (or give rise to any right of
termination, acceleration, cancellation, repurchase or redemption) or Repayment
Event (as hereinafter defined) under, or result in the creation or imposition of
a Lien (other than those described in the Registration Statement, the General
Disclosure Package and the Prospectus) upon any of the properties or assets of
any of the Company, the Operating Partnership or the Subsidiaries pursuant to,
(i) any statute, law, rule, ordinance, regulation, judgment, order or decree of
any court, domestic or foreign, regulatory body, administrative agency,
governmental body, arbitrator or other authority, domestic or foreign, having
jurisdiction over any of the Company, the Operating Partnership or the
Subsidiaries or any of their properties or assets, (ii) any term, condition or
provision of any Agreements or Instruments, or (iii) the charter, declaration of
trust, by-laws, certificate of formation, operating agreement or partnership
agreement or similar organizational or governing documents, as applicable, of
any of the Company, the Operating Partnership or the Subsidiaries, except, in
the case of clauses (i) and (ii), for such conflicts, breaches, defaults,
violations, rights, Repayment Events or Liens that are disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus or as
would not have, or reasonably be expected to have, a Material Adverse Effect.
The Company has full corporate power and authority to authorize, issue and sell
the Securities as contemplated by this Agreement. As used herein,
“Repayment Event” means any event or condition which, without regard to
compliance with any notice or other procedural requirements, 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 any of the Company, the
Operating Partnership or the Subsidiaries.
7
(q) This
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, and the Operating Partnership Agreement,
has been duly and validly authorized, executed and delivered by the Company and
the Operating Partnership and, to the knowledge of the Company and the Operating
Partnership, by each of the other parties thereto (other than the
Representatives); and each of this Agreement and the Operating Partnership
Agreement, assuming due authorization, execution and delivery by the parties
thereto (other than the Company and the Operating Partnership), is a valid and
binding agreement of each of the Company and the Operating Partnership,
enforceable against the Company and the Operating Partnership in accordance with
its terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, or other similar laws
relating to creditors’ rights and general principles of equity and except as
rights to indemnify and contribution thereunder may be limited by applicable law
or policies underlying such law.
(r) The
Company, the Operating Partnership and the Subsidiaries possess all
certificates, licenses, consents, approvals, permits and other authorizations
(“Licenses”) issued by appropriate governmental agencies or bodies or third
parties necessary to conduct the business now operated by them or proposed to be
operated by them (as described in the Registration Statement, the General
Disclosure Package and the Prospectus), are in compliance with the terms and
conditions of all such Licenses, and have not received any notice of proceedings
relating to the revocation or modification of any such Licenses except where the
failure to possess any such License or to comply with any of its terms and
conditions, or an adverse determination in any proceeding, would not
individually or in the aggregate have, or reasonably be expected to have, a
Material Adverse Effect.
8
(s) The
consolidated financial statements of the Company and its subsidiaries included
or incorporated or deemed incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly in all material respects the
consolidated financial position of the Company at the dates indicated and the
consolidated statements of operations, changes in stockholders’ equity and cash
flows of the Company for the periods specified; and said financial statements
have been prepared in conformity with U.S. generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto and subject to normal
year-end adjustments in the case of any unaudited interim financial statements)
and have been prepared in all material respects on a consistent basis with the
books and records of the Company. The supporting schedules included or
incorporated or deemed incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus present fairly in all material
respects in accordance with GAAP the information required to be stated therein
as of the dates indicated. The historical summaries of revenue and certain
operating expenses of properties included or incorporated or deemed incorporated
by reference in the Registration Statement, the General Disclosure Package and
the Prospectus present fairly in all material respects the revenues and
operating expenses included in such summaries for the periods specified in
conformity with GAAP. The selected financial data and the summary
financial information included or incorporated or deemed incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus present fairly in all material respects the information shown therein
and have been compiled on a basis consistent with that of the financial
statements included or incorporated or deemed incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus. No
other historical or pro forma financial statements (or schedules) are required
by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations to be included or incorporated or deemed incorporated by reference
in the Registration Statement or the Prospectus. All disclosures
contained in the Registration Statement, the General Disclosure Package or the
Prospectus, if any, of any “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply in all material
respects with Regulation G under the 1934 Act and Item 10 of Regulation S-K of
the 1933 Act Regulations, to the extent applicable.
(t) Deloitte
& Touche LLP, who certified the financial statements, and supporting
schedules and historical summaries of revenues and certain operating expenses
for the properties related thereto included or incorporated or deemed to be
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus and delivered the initial letter referred to in
Section 6(f) hereof, are independent registered certified public accountants as
required by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations.
(u) There are
no transfer taxes or other similar fees or charges under federal law or the laws
of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance or
sale by the Company of the Securities.
(v) The
Company, beginning with its taxable year ended December 31, 2005 and
through its taxable year ended December 31, 2008 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 1986, as
amended (the “Code”), and the current and proposed method of operation of the
Company, as described in the Registration Statement, the General Disclosure
Package and the Prospectus, will permit the Company to continue to meet the
requirements for qualification and taxation as a REIT under the Code for so long
as the Board of Directors of the Company deems it in the best interests of the
Company’s stockholders to remain so qualified for taxation as a REIT under the
Code.
9
(w) The
Company (i) is not subject to a “section 382 limitation” as defined in Section
382 of the Code and (ii) will not be subject to a section 382 limitation
immediately after the sale of the Securities, in each case that would have, or
reasonably be expected to have, a Material Adverse Effect. If there
is a “change in control” of the Company as defined in Section 382 of the Code,
it will not have a Material Adverse Effect.
(x) Each of
the Company, the Operating Partnership and the Subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be filed or
has requested extensions thereof, in each case, to the extent material
(“Returns”) (except in any case in which the failure so to file would not have a
Material Adverse Effect), whether or not arising from transactions in the
ordinary course of business, except as described in the Registration Statement,
the General Disclosure Package and the Prospectus, and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect whether or not arising
from transactions in the ordinary course of business, except as described in the
Registration Statement, the General Disclosure Package and the Prospectus. No
audits or other administrative proceedings or court proceedings are presently
pending against any of the Company, the Operating Partnership or the
Subsidiaries with regard to any Returns, and no taxing authority has notified
any of the Company, the Operating Partnership or the Subsidiaries in writing
that it intends to investigate its tax affairs, except where any such audit or
investigation, would not have, or would not reasonably be expected to have, a
Material Adverse Effect.
(y) Each of
the Company, the Operating Partnership and the Subsidiaries has complied in all
material respects with the provisions of the Code relating to the payment and
withholding of Taxes, including, without limitation, the withholding and
reporting requirements under Sections 1441 through 1446, 3401 through 3406, and
6041 and 6049 of the Code, as well as similar provisions under any other laws,
and has, within the time and in the manner prescribed by law, withheld and paid
over to the proper governmental authorities all material amounts required in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party, except in any case in which the
failure so to comply would not have a Material Adverse Effect.
(z) None of
the Company, the Operating Partnership or the Subsidiaries (including any
predecessor entities) has distributed, or prior to the later of the Closing Date
(or the final Date of Delivery) and the completion of the distribution of the
Securities, will distribute, any offering material in connection with the
offering or sale of the Securities other than the Registration Statement, the
General Disclosure Package and the Prospectus and any other written materials
consented to by the Representatives pursuant to Section 5(g) hereof) (it being
understood that no representation is made with respect to any other materials
distributed by the Representatives).
10
(aa) Each of
the Company, the Operating Partnership and the Subsidiaries is in compliance, in
all material respects, with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension plan” (as defined in
ERISA) for which the Company or the Operating Partnership would have any
liability; none of the Company, the Operating Partnership or the Subsidiaries
has incurred or expects to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “pension plan” or (ii)
Sections 412 or 4971 of the Code, including the regulations and published
interpretations thereunder; and each “pension plan” for which any of the
Company, the Operating Partnership or the Subsidiaries would have any liability
and that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects, and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification, except
where the failure to be so qualified would not have, or reasonably be expected
to have, a Material Adverse Effect.
(bb) The
assets of the Company, the Operating Partnership and the Subsidiaries do not
constitute “plan assets” of an ERISA regulated employee benefit
plan.
(cc) (1) Each
of the Company, the Operating Partnership and the Subsidiaries has fee simple
title or a valid leasehold interest to all of the properties and other assets
described in the Prospectus as owned or leased by the Company, the Operating
Partnership or the Subsidiaries (the “Properties”), in each case, free and clear
of all Liens, except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus or such as would not have, or reasonably
be expected to have, a Material Adverse Effect; (2) all Liens on or affecting
the Properties that are required to be disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus are disclosed therein and none
of the Company, the Operating Partnership or the Subsidiaries is in default
under any such Lien except for such defaults that would not have, or reasonably
be expected to have, a Material Adverse Effect; (3) all of the leases and
subleases material to the business of the Company, the Operating Partnership and
the Subsidiaries, taken as a whole, and under which the Company, the Operating
Partnership or any of the Subsidiaries holds properties described in the
Registration Statement, the General Disclosure Package and the Prospectus, are
in full force and effect, and none of the Company, the Operating Partnership or
any Subsidiary has received any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of any of the Company, the
Operating Partnership or any Subsidiary under any of such leases or subleases,
or affecting or questioning the rights of any of the Company, the Operating
Partnership or such Subsidiary to the continued possession of the leases or
subleased premises under any such lease or sublease; (4) none of the
Company, the Operating Partnership or the Subsidiaries is in violation of any
municipal, state or federal law, rule or regulation concerning the Properties or
any part thereof which violation would have, or reasonably be expected to have,
a Material Adverse Effect; (5) each of the Properties complies with all
applicable zoning laws, laws, ordinances, regulations, development agreements,
reciprocal easement agreements, ground or airspace leases and deed restrictions
or other covenants, except where the failure to comply would not have, singly or
in the aggregate, or reasonably be expected to have, a Material Adverse Effect;
and (6) none of the Company, the Operating Partnership or the Subsidiaries
has received from any Governmental Authority any written notice of any
condemnation of or zoning change materially affecting the Properties or any part
thereof, and none of the Company, the Operating Partnership or the Subsidiaries
knows of any such condemnation or zoning change which is threatened and which if
consummated would have, or reasonably be expected to have, a Material Adverse
Effect.
11
(dd) Each of
the Company, the Operating Partnership and the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are reasonably believed to be adequate in respect of the
businesses in which they are or will be engaged as described in the Registration
Statement, the General Disclosure Package and the Prospectus, all of which is,
to the knowledge of the Company and the Operating Partnership, in full force and
effect and each of the Company, the Operating Partnership and the Subsidiaries
is in compliance with the terms of such policies and instruments in all material
respects; except as described in the Registration Statement, the General
Disclosure Package and the Prospectus, there are no material claims by any of
the Company, the Operating Partnership or the Subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; and, except as disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus, none
of the Company, the Operating Partnership or the Subsidiaries has been refused
any customary insurance coverage sought or applied for; and neither the Company
nor the Operating Partnership has any reason to believe that any of the Company,
the Operating Partnership or the Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue to
conduct its business as currently conducted or as proposed to be conducted in
the Registration Statement, the General Disclosure Package and the Prospectus at
a cost that would not have a Material Adverse Effect.
(ee) Except as
set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, the mortgages and deeds of trust encumbering the Properties are not
convertible into equity interests in the Property nor will the Company, the
Operating Partnership, the Subsidiaries, or any person affiliated therewith
holds a participating interest therein, and such mortgages and deeds of trust
are not cross-defaulted or cross-collateralized to any property not owned
directly or indirectly by the Company or the Operating Partnership.
(ff) The
Operating Partnership or a Subsidiary has title insurance on the fee interests
and/or leasehold interests in each of the Properties covering such risks and in
such amounts as are commercially reasonable for the assets owned or leased by
them and that are reasonably believed to be consistent with the types and
amounts of insurance typically maintained by owners and operators of similar
properties, and such title insurance is, to the knowledge of the Company and the
Operating Partnership, in full force and effect.
(gg) Except as
(x) otherwise described in the Registration Statement, the General Disclosure
Package and the Prospectus or (y) would not have a Material Adverse Effect: (i)
the Company, the Operating Partnership and the Subsidiaries and the Properties
have been and are in compliance with, and none of the Company, the Operating
Partnership or the Subsidiaries has any liability under, applicable
Environmental Laws (as hereinafter defined), (ii) none of the Company, the
Operating Partnership, the Subsidiaries has at any time released (as such term
is defined in Section 101(22) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675
(“CERCLA”)) or otherwise disposed of or dealt with, Hazardous Materials (as
hereinafter defined) on, to or from the Properties or other assets owned by the
Company, the Operating Partnership or the Subsidiaries, except for such releases
or dispositions as would not be reasonably likely to cause the Company, the
Operating Partnership or the Subsidiaries to incur liability and that would not
require disclosure pursuant to Environmental Laws, (iii) neither the Company nor
the Operating Partnership intend to use the Properties or other assets owned by
any of the Company, the Operating Partnership or the Subsidiaries or any
subsequently acquired properties, other than in compliance with applicable
Environmental Laws, (iv) none of the Company, the Operating Partnership or the
Subsidiaries knows of any seepage, leak, discharge, release, emission, spill, or
dumping of Hazardous Materials into waters (including, but not limited to,
groundwater and surface water) on, beneath or adjacent to the Properties, or
onto lands or other assets owned by the Company, the Operating Partnership or
the Subsidiaries from which Hazardous Materials might seep, flow or drain into
such waters except for such as would not be reasonably likely to cause the
Company, the Operating Partnership or the Subsidiaries to incur liability,
(v) none of the Company, the Operating Partnership or the Subsidiaries has
received any notice of, or has any knowledge of any occurrence or circumstance
which, with notice or passage of time or both, would give rise to a claim under
or pursuant to any Environmental Law or common law by any governmental or
quasi-governmental body or any third party with respect to the Properties or
other assets described in the Registration Statement, the General Disclosure
Package and the Prospectus or arising out of the conduct of the Company, the
Operating Partnership or the Subsidiaries, except for such claims that would not
be reasonably likely to cause the Company or the Operating Partnership to incur
liability and that would not require disclosure pursuant to Environmental Laws
and (vi) neither the Properties nor any other assets currently owned by any
of the Company, the Operating Partnership or the Subsidiaries is included or, to
the knowledge of the Company, the Operating Partnership and the Subsidiaries,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
by the United States Environmental Protection Agency (the “EPA”) or, to the
knowledge of the Company, the Operating Partnership and the Subsidiaries,
proposed for inclusion on any similar list or inventory issued pursuant to any
other applicable Environmental Law or issued by any other Governmental
Authority. To the knowledge of the Company, the Operating Partnership and the
Subsidiaries, there have been no and are no (i) aboveground or underground
storage tanks, (ii) polychlorinated biphenyls (“PCBs”) or PCB-containing
equipment, (iii) asbestos or asbestos containing materials, (iv) lead based
paints, (v) dry-cleaning facilities, or (vi) wet lands, in each case in, on,
under, or adjacent to any Property or other assets owned by the Company, the
Operating Partnership or the Subsidiaries the existence of which has had, or is
reasonably expected to have, a Material Adverse Effect.
12
As used
herein, “Hazardous Material” shall include, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes, toxic
substances, or related materials, asbestos or any hazardous material as defined
or regulated by any applicable federal, state or local environmental law,
ordinance, statute, rule or regulation including, without limitation, CERCLA,
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §§5101-5128,
the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901-6992k, the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050, the
Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692, the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y, the Clean Air Act, 42
U.S.C. §§ 7401-7671q, the Clean Water Act (Federal Water Pollution Control Act),
33 U.S.C. §§ 1251-1387, the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26,
and the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, as any of the
above statutes may be amended from time to time, and in the regulations
promulgated pursuant to any of the foregoing (including environmental statutes
not specifically defined herein) (individually, an “Environmental Law” and
collectively, “Environmental Laws”) having or claiming jurisdiction over the
Properties and other assets described in the Registration Statement, the General
Disclosure Package and the Prospectus (a “Governmental Authority”).
(hh) No labor
problem or dispute with the employees of the Company, the Operating Partnership
or the Subsidiaries exists or, to the knowledge of the Company or the Operating
Partnership, is threatened or imminent, and neither the Company nor the
Operating Partnership are aware of any existing or imminent labor disturbance by
the employees of any of their or their Subsidiaries’ principal suppliers,
contractors or customers, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(ii) Except as
would not have, or reasonably be expected to have, a Material Adverse Effect,
the Company, the Operating Partnership and the Subsidiaries own and have full
right, title and interest in and to, or has valid licenses to use, each trade
name, trademark, service ▇▇▇▇, patent, copyright, approval, trade secret and
other similar rights (collectively “Intellectual Property”) necessary for the
conduct of the Company’s or the Operating Partnership’s business as now
conducted or as proposed in the Registration Statement, the General Disclosure
Package and the Prospectus to be conducted. Except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus and
except as would not have, or reasonably expected to have, a Material Adverse
Effect, (a) to the knowledge of the Company and the Operating Partnership, there
are no rights of third parties to any such Intellectual Property, (b) to the
knowledge of the Company and the Operating Partnership, there is no infringement
by third parties of any such Intellectual Property, (c) there is no pending
or, to the knowledge of the Company and the Operating Partnership, threatened
action, suit, proceeding or claim by others challenging the Company’s or the
Operating Partnership’s rights in or to any such Intellectual Property, and the
Company and the Operating Partnership are unaware of any facts which would form
a reasonable basis for any such claim, (d) there is no pending or, to the
knowledge of the Company and the Operating Partnership, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property, and the Company and the Operating Partnership are unaware
of any facts which would form a reasonable basis for any such claim and (e)
there is no pending or, to the knowledge of the Company and the Operating
Partnership, threatened action, suit, proceeding or claim by others that the
Company or the Operating Partnership infringe or otherwise violate any patent,
trademark, copyright, trade secret or other proprietary rights of others, and
the Company and the Operating Partnership are unaware of any other fact which
would form a reasonable basis for any such claim.
13
(jj) Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, there is not pending or, to the knowledge of the Company and the
Operating Partnership, threatened, any action, suit or proceeding against or
affecting any of the Company and the Operating Partnership, the Subsidiaries or
any of the Properties or other assets that, if determined adversely to any of
the Company, the Operating Partnership or the Subsidiaries, would have, or
reasonably be expected to have, a Material Adverse Effect, or would materially
and adversely affect the ability of the Company or the Operating Partnership to
perform their obligations under this Agreement.
(kk) Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, since the date of the latest audited financial statements included
or incorporated or deemed incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus, (1) there has been
no Material Adverse Effect, (2) there have been no transactions entered into by
any of the Company, the Operating Partnership or the Subsidiaries which are
material with respect to the Company, the Operating Partnership and their
Subsidiaries taken as a whole, (3) none of the Company, the Operating
Partnership or the Subsidiaries has incurred any obligation or liability,
direct, contingent or otherwise that is or would be material to the Company, the
Operating Partnership and the Subsidiaries taken as a whole and (4) there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock or by the Operating Partnership or any
of its subsidiaries with respect to its OP Units.
(ll) None of
the Company, the Operating Partnership nor any Subsidiary is or, after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the General Disclosure Package and the
Prospectus, will be, required to register as an “investment company” within the
meaning of the Investment Company Act of 1940, as amended (the “1940
Act”).
(mm) There are
no contracts or other documents that are required to be described in the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described, filed or incorporated by reference in the Registration Statement
and the Prospectus as required by the 1933 Act.
(nn) No
relationship, direct or indirect, exists between or among the Company or the
Operating Partnership on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or the Operating Partnership
on the other hand, which is required pursuant to the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations to be described in the
Registration Statement, the General Disclosure Package or the Prospectus which
is not so described.
14
(oo) Except
(i) to the extent not required to be described or filed pursuant to the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, (ii) as
described in the Registration Statement, the General Disclosure Package and the
Prospectus or (iii) for the agreements referred to herein, none of the
Company’s, the Operating Partnership’s or the Subsidiaries’ directors, officers,
interest holders, stockholders, members, partners, members of management, other
employees or their respective affiliates is a party to any contract or agreement
with the Company, the Operating Partnership or any Subsidiary and none of the
Company’s, the Operating Partnership’s or the Subsidiaries’ directors, officers,
interest holders, members, partners, members of management, other employees or
their respective affiliates owns any property or right, tangible or intangible,
which is used in any material manner by the Company, the Operating Partnership
or any Subsidiary.
(pp) The
Company maintains internal accounting controls which provide reasonable
assurance that (i) transactions are executed in accordance with management’s
authorization, (ii) transactions are recorded as necessary to permit preparation
of its financial statements in conformity with GAAP and to maintain
accountability for its assets, (iii) access to its assets is permitted only in
accordance with management’s authorization and (iv) the reported accountability
for its assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Since
the end of the Company’s most recent audited fiscal year, there has been (A) no
material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (B) 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.
(qq) The
Company employs 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 1934 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 management, including the principal
executive officer or officers and principal financial officer or officers, as
appropriate, to allow timely decisions regarding disclosure.
(rr) There is
and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in all material
respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications, in each case, to the extent the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applies to
the Company.
(ss) The
operations of the Company, the Operating Partnership and the Subsidiaries are
and have been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving any of the Company, the Operating
Partnership or the Subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company or the Operating Partnership,
threatened.
(tt) None of
the Company, the Operating Partnership nor any Subsidiary nor to the knowledge
of the Company or the Operating Partnership, any director, officer, agent,
employee or affiliate of any of the Company or the Operating Partnership or any
of the Subsidiaries, is aware of or has taken any action, directly or
indirectly, that would result in a material 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, the Subsidiaries and, to the knowledge of the Company or
the Operating Partnership, their affiliates have conducted their businesses in
compliance with the FCPA in all material respects.
(uu) None of
the Company, the Operating Partnership, the Subsidiaries or, to the knowledge of
the Company or the Operating Partnership, any director, officer, agent, employee
or affiliate of any of the Company, the Operating Partnership or the
Subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and
neither the Company nor the Operating Partnership will directly or indirectly
use the proceeds of the offering of the Securities, 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.
15
(vv) None of
the Company, the Operating Partnership, the Subsidiaries or, to the knowledge of
the Company or the Operating Partnership, their respective officers, directors,
members or controlling persons has taken, or will take, directly or indirectly,
any action designed to or that might reasonably be expected to result in a
violation of Regulation M under the 1934 Act or cause or result in stabilization
or manipulation of the price of the Common Stock to facilitate the sale or
resale of the Securities.
(ww) The
Company has not issued any stock options under the Education Realty Trust, Inc.
2004 Incentive Plan or otherwise.
(xx) The
Company intends to apply the net proceeds from the sale of the Securities
substantially in accordance with the description set forth in the General
Disclosure Package and the Prospectus under the heading “Use of
Proceeds.”
(yy) Throughout
the period from its formation through the date hereof, each of the Operating
Partnership and any other Subsidiary that is formed as a partnership or a
limited liability company for State law purposes has been properly classified
either as a partnership or as an entity disregarded as separate from the Company
for federal income tax purposes and is not a “publicly traded partnership”
within the meaning of Section 7704(b) of the Code.
(zz) Except as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, none of the Operating Partnership or the Subsidiaries are currently
prohibited, directly or indirectly, from paying any distributions to the Company
to the extent permitted by applicable law, from making any other distribution on
the Operating Partnership’s partnership interests, or from repaying to the
Company any loans or advances made by the Company to the Operating Partnership
or any such Subsidiary.
Any
certificate or document signed by any officer or representative of the Company
or the Operating Partnership and delivered to any Underwriter, or to counsel for
the Underwriters, shall be deemed a representation and warranty by each of the
Company and the Operating Partnership, as to matters set forth therein to each
Underwriter.
2. Purchase and
Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$4.1543 per share (representing a public offering price of $4.3500 per share,
less an underwriting discount of $0.1957 per share), the amount
of the Firm Securities set forth opposite such Underwriter’s name in
Schedule I
hereto.
16
(b) Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to 3,675,000 Option
Securities at the same purchase price per share as the Underwriters shall pay
for the Firm Securities less an amount equal to any dividends payable or paid to
the holders of the Firm Securities but not payable or paid to the holders of the
Option Securities. Said option may be exercised only to cover
overallotments in the sale of the Firm Securities by the
Underwriters. Said option may be exercised in whole or in part at any
time or from time to time on or before the 30th day after the date of this
Agreement upon written or telegraphic notice by the Representatives to the
Company setting forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the time, date and place
of payment and delivery of such Option Securities. Any such time and
date of delivery (a “Date of Delivery”) shall be determined by the Underwriters
in accordance with Section 3 hereof. The number of Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Firm Securities,
subject to such adjustments as the Representatives in their absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and
Payment. Delivery of and payment for the Firm Securities and
the Option Securities (if the option provided for in Section 2(b) hereof shall
have been exercised on or before the third business day prior to the Closing
Date) shall be made at 10:00 a.m., New York City time, at the offices of Sidley
Austin llp, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on July 28, 2009,
or at such time on such later date not more than three business days after the
foregoing date as the Representatives and the Company shall agree, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the “Closing
Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of
the Firm Securities and the Option Securities shall be made, and the Firm
Securities and the Option Securities shall be registered in such names and
denominations, as the Representatives shall have requested at least one full
business day prior to the Closing Date (or any Date of Delivery, as the case may
be).
If the
option provided for in Section 2(b) hereof is exercised after the third business
day prior to the Closing Date, the Company will deliver the Option Securities
(at the expense of the Company) to the Representatives, at the above-mentioned
offices of Sidley Austin LLP, or at such other place as
shall be agreed upon by the Representatives and the Company, on the date
specified by the Representatives (which shall be within three business days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Option Securities occurs after the
Closing Date, the Company will deliver to the Representatives on each Date of
Delivery, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6
hereof.
17
4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
General Disclosure Package and the Prospectus.
5. Agreements. The
Company agrees with the several Underwriters that:
(a) The
Company will comply, subject to the remainder of this clause (a), with the
requirements of Rule 430B. Prior to the termination of the offering
of the Securities, the Company will not use or file any amendment to the
Registration Statement or amendment or supplement to the General Disclosure
Package or the Prospectus or any new registration statement relating to the
Securities unless the Company has furnished the Representatives an electronic
copy for review prior to filing and will not file or use any such proposed
amendment or supplement or new registration statement to which the
Representatives reasonably object. The Company has given the
Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act
Regulations within 48 hours prior to the Applicable Time; the Company will give
the Representatives notice of its intention to make any such filing from the
Applicable Time to the Closing Date and will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed
filing and will not file or use any such document to which the Representatives
or counsel for the Underwriters shall reasonably object. The
Company will cause the Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. After the date of this Agreement and during any period in
which a Prospectus relating to the Securities is required to be delivered by the
Underwriters under the 1933 Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 of the 1933 Act Regulations
(“Rule 172”)), the Company will promptly advise the Representatives (1) of the
effectiveness of any amendment to the Registration Statement or any new
registration statement relating to the Securities, (2) of the transmittal to the
Commission for filing of any supplement or amendment to the Prospectus or any
document to be filed pursuant to the 1934 Act that will be incorporated by
reference into the Prospectus, (3) of the receipt of any comments from the
Commission with respect to the Registration Statement or Prospectus or documents
incorporated or deemed to be incorporated by reference therein, (4) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information relating
thereto, (5) of the issuance of any stop order by the Commission suspending the
effectiveness of the Registration Statement, or any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or the
institution or threatening of any proceedings for that purpose or of any
examination pursuant to Section 8(e) of the 1933 Act concerning the Registration
Statement, (6) if the Company becomes the subject of a proceeding under Section
8A of the 1933 Act in connection with the offering of the Securities, and (7) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such order or
the suspension of any such qualification, and, if issued, to obtain as soon as
possible, the withdrawal thereof.
18
(b) Subject
to the last sentence of this Section 5(b), if, immediately prior to August 25,
2009 (with respect to Registration Statement No. 333-136147) or the third
anniversary of the initial effective date of the Registration Statement (with
respect to any subsequently filed Registration Statement) (in each case, the
“Renewal Deadline”), any Securities remain unsold by the Underwriters (including
any Option Securities that the Underwriters may elect to purchase pursuant to
the option granted to them in Section 2(b) hereof), the Company will, prior to
that date, (i) promptly notify the Representatives, (ii) immediately file a
new registration statement relating to such Securities, in a form satisfactory
to the Representatives, so that the securities covered by the Registration
Statement may continue to be offered and sold thereunder as permitted by Rule
415(a)(5) of the 1933 Act pending the effectiveness of the new registration
statement contemplated by this Section 5(b) and use its best efforts to cause
such registration statement to be declared effective on a date determined by the
Company on or prior to the 180th day following the initial filing thereof, and
(iii) promptly notify the Representatives of such
effectiveness. References herein to the “Registration Statement”
shall include such new registration statement upon the effectiveness of such new
registration statement as contemplated hereby, if at all. Provided, however, if
the Representatives notify the Company that no Securities remain unsold
(including any Option Securities that the Underwriters may elect to purchase
pursuant to the option granted to them in Section 2(b) hereof), the Company
shall not be obligated to file a registration statement (or otherwise request
the effectiveness thereof) pursuant to this Section 5(b).
(c) If, at
any time when a prospectus relating to the Securities is required to be
delivered (or but for the exception afforded by Rule 172 would be required to be
delivered) under the 1933 Act, any event or development occurs as a result of
which, in the opinion of counsel for the Underwriters or for the Company, the
Registration Statement or the Prospectus would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, or if it shall be
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus to comply
with the 1933 Act or the 1933 Act Regulations or to file a new registration
statement relating to the Securities, the Company will promptly (1) notify the
Representatives of any such event or development, (2) prepare and file with the
Commission, subject to Section 5(a) hereof, such amendment, supplement or new
registration statement which will correct such statement or omission, effect
such compliance or satisfy such filing requirement, (3) use its best efforts to
have any such amendment to the Registration Statement or new registration
statement declared effective as soon as possible (if not an automatic shelf
registration statement) and (4) supply any amended or supplemented Prospectus to
the Underwriters in such quantities as they may reasonably
request. If, at any time when a Prospectus relating to the Securities
is required to be delivered (or but for the exception afforded by Rule 172 would
be required to be delivered), an event or development occurs as a result of
which, in the opinion of counsel for the Underwriters or for the Company, the
General Disclosure Package contains 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 existing at the time it is used, not
misleading, the Company promptly will (1) notify the Representatives of any such
event or development, (2) prepare, subject to Section 5(a), an amendment or
supplement to the General Disclosure Package to eliminate or correct such untrue
statement or omission and (3) supply any amended or supplemented General
Disclosure Package to the Underwriters in such quantities as they may reasonably
request. If, at any time when a Prospectus relating to the Securities
is required to be delivered (or but for the exception afforded by Rule 172 would
be required to be delivered), an event or development occurs as a result of
which, in the opinion of counsel for the Underwriters or for the Company, any
Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement (or any other registration statement
relating to the Securities), the Statutory Prospectus or the Prospectus or
included or would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company will promptly notify the Underwriters and will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
19
(d) As soon
as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the
Company which will satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 under the 1933 Act.
(e) The
Company will furnish to the Representatives and counsel for the Underwriters
conformed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a conformed copy of the Registration Statement and, so
long as delivery of a prospectus by an Underwriter or dealer is or may be (or
but for the exception afforded by Rule 172 would be) required by the 1933 Act,
as many copies of any preliminary prospectus and the Prospectus as the
Representatives may reasonably request.
(f) Unless
publicly filed with the Commission on ▇▇▇▇▇, during the period from the date of
this Agreement through the five year anniversary hereof, the Company will
furnish upon request to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company will
furnish upon request to the Representatives as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with the
Commission under the 1934 Act or mailed to stockholders.
(g) The
Company represents and agrees that, unless it obtains the prior written consent
of the Underwriters, and each Underwriter agrees that, unless it obtains the
prior written consent of the Company and the other Underwriters, it has not made
and will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus,” as defined in Rule 433, or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission other than the Issuer Free Writing
Prospectuses, if any, identified on Schedule II
hereto. Each of the Issuer Free Writing Prospectuses, if any,
identified on Schedule
II hereto and free writing prospectuses, if any, consented to by the
Company and the Underwriters is referred to herein as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or 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. Notwithstanding the foregoing, the
Company consents to the use by any Underwriter of a free writing prospectus that
contains only (a)(i) information describing the preliminary terms of the
Securities or their offering, (ii) information meeting the requirements of Rule
134 of the 1933 Act Regulations or (iii) information that describes the final
terms of the Securities or their offering or (b) other customary information
that is neither “issuer information,” as defined in Rule 433, nor otherwise an
Issuer Free Writing Prospectus.
20
(h) The
Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate
and will maintain such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so
subject.
(i) For a
period from the date of the Prospectus through and including the 90th day
following the date of the Prospectus (such period, the “Lock-Up Period”), the
Company will not, and will not permit the Operating Partnership to, directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or lend or otherwise dispose of or transfer, or file with
the Commission a registration statement under the 1933 Act relating to, shares
of Common Stock (other than the Securities) or securities convertible into or
exchangeable or exercisable for or repayable with any shares of Common Stock,
including, without limitation, OP Units, or enter into any swap, hedge or other
arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of Common Stock, including, without limitation, OP
Units, whether any of these transactions are to be settled by delivery of Common
Stock, OP Units or other securities, in cash or otherwise, or publicly disclose
the intention to make any such offer, pledge, sale, purchase, grant, disposition
or transfer, or to enter into any such transaction, swap, hedge or other
arrangement, without the prior written consent of the Representatives, other
than (A) grants of stock options, restricted stock, or profits interest units
(“PIUs”) to employees, consultants or directors pursuant to the terms of the
2004 Incentive Plan, or other plan in effect as of the date of the Prospectus,
(B) issuances of Common Stock in connection with either redemptions of any OP
Units or limited partnership interests in the University Towers Operating
Partnership or pursuant to the Amended and Restated Dividend Reinvestment and
Stock Purchase Plan, (C) issuances of Common Stock or OP Units by the Company or
the Operating Partnership, respectively, upon exercise of any option or warrant
or the conversion of any security outstanding on the date hereof and described
in the Registration Statement, General Disclosure Package and the Prospectus,
(D) the filing of a new registration statement on Form S-3, which will replace
the Registration Statement that will expire on August 24, 2009, and (E) the
filing of a new registration statement on Form S-3, relating to Common Stock
issued under the Company’s Amended and Restated Dividend Reinvestment and Stock
Purchase Plan. Notwithstanding the foregoing, in the event that either (x)
during the last 17 days of the Lock-Up Period, the Company issues an earnings
release or material news or material event relating to the Company occurs or (y)
prior to the expiration of the Lock-Up Period, the Company announces that it
will release earning results during the 16-day period beginning on the last day
of the Lock-Up Period, the restrictions described above shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material event.
21
(j) The
Company will use its best efforts to meet the requirements to qualify, for the
taxable year ending December 31, 2009 and for each of its succeeding taxable
years for so long as the Board of Directors of the Company deems it in the best
interests of the Company’s stockholders to remain so qualified, for taxation as
a REIT under the Code.
(k) The
Company will use its best efforts to cause the Securities to be approved for
listing, subject to official notice of issuance, on the NYSE prior to the
Closing Date.
(l) For so
long as the delivery of a prospectus is required by federal or state law in
connection with the offering or sale of the Securities, the Company will comply
in all material respects with all applicable securities and other applicable
laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act, and will use its best efforts to cause the Company’s directors and
officers, in their capacities as such, to comply in all material respects with
such laws, rules and regulations, including, without limitation, the provisions
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(m) None of
the Company, the Operating Partnership or any Subsidiaries will take, directly
or indirectly, any action designed to, or that would constitute or that might
reasonably be expected to, cause or result in, under the 1934 Act or otherwise,
stabilization or manipulation of the price of any of their securities to
facilitate the sale or resale of the Securities.
(n) For so
long as the delivery of a prospectus is required by federal or state law in
connection with the offering or sale of the Securities, the Company will take
such steps as shall be necessary to ensure that none of the Company, the
Operating Partnership or any Subsidiary shall be required to register as an
“investment company” within the meaning of the 1940 Act and the rules and
regulations of the Commission thereunder.
22
(o) The
Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto),
any preliminary prospectus, the Prospectus, any Permitted Free Writing
Prospectus and all amendments or supplements to any of them; (ii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, any preliminary prospectus, the Prospectus, any Permitted Free
Writing Prospectus and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this Agreement,
any blue sky memorandum or any supplement thereto and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Securities; (v) the listing of the Securities on NYSE; (vi) any
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the jurisdictions referenced in Section 5(h)
hereof (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification); (vii) any
filings required to be made with FINRA (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such filings);
(viii) the transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Securities, if any; (ix) the fees and expenses of the Company’s accountants,
counsel (including local and special counsel) and transfer agent and registrar;
(x) any travel expenses of the officers and employees of the Company or the
Operating Partnership and any other expenses of the Company or the Operating
Partnership in connection with attending or hosting meetings with prospective
purchasers of the Securities; (xi) all other costs and expenses incident to the
performance by the Company or the Operating Partnership of their obligations
hereunder; and (xii) the reasonable costs and expenses associated with the
reforming of any contracts for sale of the Securities made by the Underwriters
caused by a breach of the representation contained in the fourth paragraph of
Section 1(a) hereof.
(p) During
the period when a prospectus is required (or but for the exception afforded by
Rule 172 would be required) to be delivered by the Underwriters under the 1933
Act or the 1934 Act, the Company will (1) comply with all provisions of the 1933
Act and (2) file all documents required to be filed with the Commission pursuant
to the 1934 Act or the 1934 Act Regulations within the time periods prescribed
therefor.
6. Conditions to the
Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Firm Securities and the Option Securities, as the
case may be, shall be subject to the accuracy of the representations and
warranties (in each case, subject to the qualifications, if any, described
therein) on the part of the Company and the Operating Partnership contained
herein as of the date hereof, the Applicable Time, the Closing Date and each
Date of Delivery, if any, pursuant to Section 3 hereof, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) On the
Closing Date, (i) the Registration Statement has become effective and no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters, (ii) each preliminary prospectus and the
Prospectus shall have been filed with the Commission in the manner and within
the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a
post-effective amendment providing such information shall have been filed and
become effective in accordance with the requirements of Rule 430B), and no order
preventing or suspending the use of any preliminary prospectus or the Prospectus
shall have been issued by the Commission or the securities authority of any
jurisdiction, (iii) any material required to be filed by the Company pursuant to
Rule 433(d) of the 1933 Act Regulations shall have been filed with the
Commission within the applicable time periods prescribed for such filings under
such Rule 433, and (iv) there shall not have come to the attention of the
Representatives any facts that would cause the Representatives to believe, after
consultation with counsel, that the General Disclosure Package or the
Prospectus, at the time it was, or was required to be, delivered or made
available to purchasers of the Securities, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time, not
misleading.
23
(b) The
Company shall have requested and caused Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for
the Company, to have furnished to the Representatives their opinion, dated the
Closing Date (or the applicable Date of Delivery, as the case may be) and
addressed to the Representatives, to the matters attached as Exhibit A
hereto. In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of Delaware (to the extent limited to Delaware corporate laws) or the
Federal laws of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. Such
opinion shall also cover any amendments or supplements thereto at the Closing
Date (or the applicable Date of Delivery, as the case may be). The
Underwriters acknowledge that the law firm of ▇▇▇▇▇▇▇ LLP, special Maryland
counsel to the Company, is satisfactory for the purposes of this Section
6(b).
In
addition, Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC shall state that, although such counsel has
not independently verified and is not passing upon and assumes no responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the General Disclosure Package or the Prospectus, no
facts have come to such counsel’s attention that have caused such counsel to
believe that (i) the Registration Statement or any amendment thereto, at the
time the Registration Statement or any such amendment became effective, or as of
the “new effective date” with respect to the Underwriters and the Securities
pursuant to, and within the meaning of, Rule 430B(f)(2), contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
the General Disclosure Package, at the Applicable Time, included an untrue
statement of a material fact or omitted 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 or (iii) the Prospectus, or any amendment
or supplement thereto, as of their respective issue dates or at the Closing Date
or the applicable Date of Delivery, as the case may be, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case, other
than the financial statements, schedules and other financial information
included or incorporated by reference therein or excluded therefrom, as to which
such counsel need express no statement).
(c) The
Representatives shall have received the favorable opinion, dated the Closing
Date (or the applicable Date of Delivery, as the case may be), of ▇▇▇▇▇▇▇ LLP,
special Maryland counsel of the Company, to the matters attached as Exhibit B
hereto.
24
(d) The
Representatives shall have received from Sidley Austin llp, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date (or the
applicable Date of Delivery, as the case may be) and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the
disclosure in the Registration Statement, the General Disclosure Package and the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company and the Operating Partnership 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,
such counsel may rely, as to matters of fact (but not as to legal conclusions),
to the extent they deem proper, on certificates of responsible officers of the
Company and public officials. In addition, in rendering such opinion,
such counsel may rely on and assume the accuracy of the opinion of ▇▇▇▇▇▇▇ LLP,
special Maryland counsel to the Company, dated as of the Closing Date (or the
applicable Date of Delivery, as the case may be), with respect to matters of
Maryland law.
(e) The
Underwriters shall have received a certificate of the president or an executive
vice president of the Company, on behalf of the Company and as sole stockholder
of Education Realty OP GP, Inc. (general partner of the Operating Partnership),
and of the chief financial officer or chief accounting officer of the Company,
on behalf of the Company and as sole stockholder of Education Realty OP GP, Inc.
(general partner of the Operating Partnership), dated the Closing Date (or the
applicable Date of Delivery, as the case may be), to the effect that the signers
of such certificate have carefully examined the Registration Statement, the
General Disclosure Package and the Prospectus and any amendments or supplements
to the foregoing, as well as this Agreement, and that:
(i) the
representations and warranties (in each case, subject to the qualifications, if
any, described therein) of the Company and the Operating Partnership in this
Agreement are true and correct on and as of the Closing Date (or the applicable
Date of Delivery, as the case may be) with the same effect as if made on the
Closing Date (or such Date of Delivery, as the case may be) and the Company and
the Operating Partnership have complied with all the agreements and satisfied
all the conditions on their part to be performed or satisfied at or prior to the
Closing Date (or such Date of Delivery, as the case may be);
(ii) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or, to
the Company’s knowledge, are threatened by the Commission, and no order
preventing or suspending the use of any preliminary prospectus or the Prospectus
has been issued by the Commission or the securities authority of any
jurisdiction; and
(iii) since the
date of the most recent financial statements included or incorporated or deemed
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus, there has been no material adverse effect on the
condition (financial or otherwise), business, earnings, properties, assets or
prospects of the Company or the Operating Partnership and the Subsidiaries,
taken as a whole, except as set forth in or contemplated in the Registration
Statement, the General Disclosure Package and the Prospectus (excluding any
documents incorporated or deemed to be incorporated by reference therein after
the date hereof).
25
(f) At the
date hereof, the Representatives shall have received a letter from Deloitte
& Touche LLP dated such date, in form and substance reasonably satisfactory
to the Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement, the General Disclosure Package and the
Prospectus.
(g) On the
Closing Date (or the applicable Date of Delivery, as the case may be), the
Representatives shall have received a letter, dated the Closing Date (or such
Date of Delivery, as the case may be), of Deloitte & Touche LLP, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (f) of this Section 6, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Date (or such Date of Delivery, as the case may be).
(h) Subsequent
to the date hereof or, if earlier, the dates as of which information is given in
the Registration Statement, the General Disclosure Package and the Prospectus,
there shall not have been (i) any change or decrease specified in the letter
referred to in Section 6(f) or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business, assets, prospects or properties of the Company or the
Operating Partnership and the Subsidiaries taken as a whole, except as set forth
in or contemplated in the Registration Statement, the General Disclosure Package
and the Prospectus, the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement, the
General Disclosure Package and the Prospectus, (iii) any downgrading in, or
withdrawal of, the rating of any debt securities of the Company by any
“nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the 1933 Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating), (iv) any suspension or material limitation by the Commission of trading
in the Common Stock or trading in securities generally on the NYSE or any
setting of minimum or maximum prices on such Exchange, or maximum ranges of
prices have been required, by such Exchange or by such system or by order of the
Commission, FINRA or any other governmental authority, (v) any banking
moratorium declared either by federal or New York State authorities or (vi) any
outbreak or significant escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis or any
significant change in national or international political, financial or economic
condition, the effect of which on financial markets is such as to make it, in
the judgment of the Representatives, impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the General
Disclosure Package and the Prospectus.
26
(i) On or
prior to the Closing Date, the Representatives shall have received lock-up
agreements substantially in the form of Exhibit C hereto (the
“Lock-up Agreements”) from each of the executive officers and directors listed
on Schedule III
hereof.
(j) On the
Closing Date, the Securities shall have been approved for listing on the NYSE,
subject only to official notice of issuance.
(k) On the
Closing Date (or the applicable Date of Delivery, as the case may be), counsel
for the Underwriters shall have been furnished with such other documents as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company or the Operating Partnership in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(l) Prior to
the Closing Date (or the applicable Date of Delivery, as the case may be), the
Company shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
Any
certificate or document signed by any officer or representative of the Company
or the Operating Partnership and delivered to any Underwriter, or to counsel for
the Underwriters, shall be deemed a representation and warranty by each of the
Company and the Operating Partnership, as to matters set forth therein, to each
Underwriter as to the statements made therein.
27
The
Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of the Closing Date (or the applicable Date of Delivery, as
the case may be) or otherwise.
If any of
the conditions specified in this Section 6 shall not have been fulfilled when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Representatives, this Agreement and
all obligations of the Underwriters hereunder may be terminated at, or at any
time prior to, the Closing Date or the applicable Date of Delivery, as the case
may be, by the Representatives, and such termination shall be without liability
of any party to any other party except as provided in Section 7 hereof and
except that Sections 1 and 8 hereof shall survive any such termination and
remain in full force and effect. Notice of such termination shall be
given to the Company in writing or by telephone or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 6 shall be delivered at the
offices of Sidley Austin llp, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date (or the applicable Date of
Delivery, as the case may be).
7. Reimbursement of
Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof (other than Section
6(h)(iv) (with respect to securities other than the Common Stock),
Section6(h)(v) and Section 6(h)(vi)) is not satisfied, because of any
termination pursuant to Section 10(a)(i) (with respect to the Common Stock) or
10(a)(iv) hereof or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through the Representatives on demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and
Contribution. (a) Each of the Company and the
Operating Partnership agrees, jointly and severally, to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter, each person who controls any Underwriter within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act and each
affiliate of any Underwriter within the meaning of Rule 405 of the 1933 Act
Regulations (i) against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the 1933
Act, the 1934 Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the Rule 430B Information, or in any amendment
to the Registration Statement, or in the General Disclosure Package, any
preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus or
any roadshow materials not constituting an Issuer Free Writing Prospectus used
in connection with the offer of Securities or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein (other
than with respect to the Registration Statement or any amendment thereto, in
light of the circumstances under which they were made) or necessary to make the
statements therein not misleading, (ii) against any and all loss, claim, damage,
liability and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section 8(d) below) any
such settlement is effected with the written consent of the Company) and (iii)
against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) of this Section 8(a); provided, however, neither the Company
nor the Operating Partnership will be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein (that information being
limited to that described in the last sentence of Section 8(b) hereof). This
indemnity agreement will be in addition to any liability which the Company or
Operating Partnership may otherwise have.
28
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
each of the Company and the Operating Partnership and each of the Company’s
directors and each of the Company’s officers who signed the Registration
Statement, each person who controls the Company or the Operating Partnership
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act and each affiliate of the Company or the Operating Partnership within
the meaning of Rule 405 of the 1933 Act Regulations to the same extent as the
foregoing indemnity from the Company and the Operating Partnership to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth under (i) the first and
second sentences of the first paragraph under the caption
“Underwriting—Commissions and Discounts” in the Prospectus, (ii) the second
sentence of the first paragraph and the first, second and sixth sentences of the
second paragraph under the caption “Underwriting—Price Stabilization, Short
Positions” in the Prospectus and (iii) the statements under
“Underwriting—Electronic Offer, Sale and Distribution of Shares” in the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any preliminary prospectus or the
Prospectus and as such information is referred to in Sections 1(a), 1(d), 8(a)
and 8(b) of this Agreement.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, which consent shall not be
unreasonably withheld, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and 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.
29
(d) If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) In the
event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Operating Partnership and the Underwriters,
severally in proportion to their respective commitments to purchase the Firm
Securities specified in Schedule I hereto,
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending the same) (collectively, “Losses”) to which the
Company and the Operating Partnership and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Operating Partnership on the one hand and by the
Underwriters on the other from the offering of the Securities; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Operating Partnership and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative benefits,
but also the relative fault of the Company and the Operating Partnership on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and the
Operating Partnership shall be deemed to be equal to the total net proceeds from
the offering of the Securities (before deducting expenses) received by them; and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company and the Operating Partnership on
the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, the Operating
Partnership and the Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (e), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, each affiliate of any
Underwriter within the meaning of Rule 405 of the 1933 Act Regulations and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company or the Operating Partnership within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act, each affiliate of the Company or the
Operating Partnership within the meaning of Rule 405 of the 1933 Act
Regulations, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company and the Operating Partnership subject in each case
to the applicable terms and conditions of this paragraph (e).
30
9. Default by an
Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Firm Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Firm Securities
set forth opposite their names in Schedule I hereto
bears to the aggregate number of Firm Securities set forth opposite the names of
all the remaining Underwriters) the Firm Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate number of Firm Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
number of Firm Securities set forth in Schedule I hereto,
and arrangements reasonably satisfactory to the Representatives and the Company
are not otherwise made for the purchase of at least 90% of the Firm Securities
(by existing or new Underwriters) within 36 hours after any such defaults, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Firm Securities, and if
such nondefaulting Underwriters do not purchase all the Firm Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five business days, as the Representatives shall determine in
order that the required changes in the Registration Statement, the General
Disclosure Package and the Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, (a) if at any time prior to such time and after the date of
this Agreement, (i) trading in the Common Stock shall have been suspended or
materially limited by the Commission or the NYSE or trading in securities
generally on the NYSE shall have been suspended or limited or minimum or maximum
prices shall have been established on such Exchange, or maximum ranges of prices
have been required, by such Exchange or by order of the Commission, (ii) a
banking moratorium shall have been declared either by federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic condition,
the effect of which on financial markets is such as to make it, in the judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the General Disclosure Package
and the Prospectus or (iv) if there has been, since the date hereof or since the
respective dates as of which information is given in the Registration Statement,
the Prospectus and the General Disclosure Package, a Material Adverse Effect,
except as set forth in or contemplated in the Registration Statement, the
Disclosure Package and the Prospectus (excluding any documents incorporated or
deemed to be incorporated by reference therein after the date hereof) or (b) as
provided in Sections 6 and 9 hereof. Any such termination shall be
without liability of any party to any other party except as provided in Section
7 hereof and except that Sections 1 and 8 hereof shall survive any such
termination and remain in full force and effect.
11. Representations and
Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Company or the Operating
Partnership or any officer or representative of any of the Company or the
Operating Partnership and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or the
Operating Partnership or any of their respective officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
31
12. No Fiduciary
Relationship. The Company and the Operating Partnership
acknowledge and agree that (i) the purchase and sale of the Securities pursuant
to this Agreement is an arm’s-length commercial transaction between the Company
and the Operating Partnership, on the one hand, and the Underwriters, on the
other hand, (ii) in connection with the offering contemplated hereby and the
process leading to such transaction, each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company, the
Operating Partnership or their respective securityholders, creditors, employees
or any other party, (iii) no Underwriter has assumed or will assume an advisory
or fiduciary responsibility in favor of the Company or the Operating Partnership
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company or the Operating Partnership on other matters) and no Underwriter
has any obligation to the Company or the Operating Partnership with respect to
the offering contemplated hereby except the obligations expressly set forth in
this Agreement, (iv) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company and the Operating Partnership, and (v) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect
to the transactions contemplated hereby and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
13. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representatives, will be mailed to (a) ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Department (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) with a copy to
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ECM Legal (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) , (b)
KeyBanc Capital Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, Attention: Equity Capital Markets (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇),
(c) UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Equity Syndicate Department (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), with copies
to Sidley Austin LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III (phone: (▇▇▇) ▇▇▇-▇▇▇▇; facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇); or, if sent to the Company or the Operating Partnership, will
be delivered to Education Realty Trust, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ , ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. Good
(facsimile: (▇▇▇) ▇▇▇-▇▇▇▇).
14. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
15. Applicable
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
32
16. Waiver of Jury
Trial. The Company, the Operating Partnership and the
Underwriters hereby irrevocably waive, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
17. Counterparts. This
Agreement may be signed in one or more counterparts (including by facsimile),
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
18. Headings. The section
headings used herein are for convenience only and shall not affect the
construction hereof.
[Signature
Page Follows]
33
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company, the Operating
Partnership and the several Underwriters.
Very
truly yours,
By: /s/▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive
Officer, President and Chairman of the Board of Directors
EDUCATION
REALTY OPERATING PARTNERSHIP, LP
By: Education
Realty OP GP, Inc., its general partner
By: /s/▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive
Officer, President and Chairman of the Board of Directors
34
|
The
foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
|
|
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
KeyBanc
Capital Markets Inc.
UBS
Securities LLC
as
Representatives of the several Underwriters
|
|
|
|
By: ▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
|
|
|
INCORPORATED
|
|
|
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Title:
Managing Director
|
|
|
By: KEYBANC
CAPITAL MARKETS INC.
|
|
|
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Title:
Senior Managing Director
|
|
|
By: UBS
SECURITIES LLC
|
|
|
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Title:
Managing Director
|
|
|
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Title:
Director
|
|
|
For
themselves and the several Underwriters listed on Schedule I
hereto
|
35
SCHEDULE
I
|
Underwriters
|
Number
of
Firm
Securities
to be Purchased
|
|||
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
|
12,738,856 | |||
|
KeyBanc
Capital Markets Inc.
|
4,009,481 | |||
|
UBS
Securities LLC
|
4,009,481 | |||
|
▇▇▇▇▇▇
▇▇▇▇▇▇ & Company, Inc.
|
2,138,390 | |||
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Company, Incorporated
|
1,069,195 | |||
|
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
|
534,597 | |||
|
Total
|
24,500,000 | |||
S-I
SCHEDULE
II
SPECIFY
EACH ISSUER FREE WRITING PROSPECTUS OR OTHER INFORMATION CONVEYED BY
UNDERWRITERS TO PURCHASERS INCLUDED IN THE DISCLOSURE PACKAGE
Issuer
Free Writing Prospectuses: None
Number of
shares of Common Stock offered: 24,500,000 (or 28,175,000 if the
Underwriters’ overallotment option is exercised in full)
Price to public: $4.35 per share
S-II
SCHEDULE
III
Persons
Subject to Lock-up Agreements
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J. ▇▇▇▇
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S-III
SCHEDULE
IV
|
▇▇▇▇▇
& O’Hara Development Company, LLC
|
EDR
State College, Inc.
|
|
▇▇▇▇▇
& ▇’▇▇▇▇ Education Services, Inc.
|
EDR
State College, LLC
|
|
AOD/Raleigh
Residence Hall, LLC
|
EDR
Statesboro, LLC
|
|
Cape
Place (DE), LLC
|
EDR
Stillwater Limited Partnership
|
|
Carrollton
Place, LLC
|
EDR
Stillwater, Inc.
|
|
▇▇▇▇▇▇▇
Place (DE), LLC
|
EDR
Stillwater, LLC
|
|
EDR
Athens I, LLC
|
EDR
Syracuse, LLC
|
|
EDR
Auburn, LLC
|
EDR
Tallahassee I, LLC
|
|
EDR
Berkeley Place GP, LLC
|
EDR
Tallahassee Limited Partnership
|
|
EDR
Berkeley Place Limited Partnership
|
EDR
Tallahassee, Inc.
|
|
EDR
BG GP, LLC
|
EDR
Tallahassee, LLC
|
|
EDR
BG, LP
|
EDR
Tampa Limited Partnership
|
|
EDR
Carbondale, LLC
|
EDR
Tampa, Inc.
|
|
EDR
▇▇▇▇▇ Manager, Inc.
|
EDR
Tampa, LLC
|
|
EDR
▇▇▇▇▇, LLC
|
EDR
Tucson I, LLC
|
|
EDR
Clemson I GP, Inc.
|
EDR
Tucson Phase II Limited Partnership
|
|
EDR
Clemson I Limited Partnership
|
EDR
Tucson, Inc.
|
|
EDR
Clemson Place GP, LLC
|
EDR
Tucson, LLC
|
|
EDR
Clemson Place Limited Partnership
|
EDR
Wabash Limited Partnership
|
|
EDR
Columbia Limited Partnership
|
EDR
Wabash, Inc.
|
|
EDR
Columbia, Inc.
|
EDR
Wabash, LLC
|
|
EDR
Columbia, LLC
|
EDR
Western Michigan Limited Partnership
|
|
EDR
Columbus Limited Partnership
|
EDR
Western Michigan, Inc.
|
|
EDR
Columbus, Inc.
|
EDR
Western Michigan, LLC
|
|
EDR
Columbus, LLC
|
Education
Realty Limited Partner, LLC
|
|
EDR
Gainesville GP, LLC
|
Education
Realty OP GP, Inc.
|
|
EDR
Gainesville Limited Partnership
|
Education
Realty OP Limited Partner Trust
|
|
EDR
Greensboro, LLC
|
Education
Realty Operating Partnership, LP
|
|
EDR
Isla Vista JV Investor, LLC
|
Education
Realty Trust, LLC
|
|
EDR
Isla Vista JV Manager, LLC
|
Jacksonville
Place (DE), LLC
|
|
EDR
Isla Vista Services Investor, LLC
|
Macon
Place (DE), LLC
|
|
EDR
Isla Vista Services Manager, LLC
|
▇▇▇▇▇▇
Place (DE), LLC
|
|
EDR
Knoxville Limited Partnership
|
▇▇▇▇▇▇
Place (DE), LLC
|
|
EDR
Knoxville, Inc.
|
River
Place (DE), LLC
|
|
EDR
Knoxville, LLC
|
Statesboro
Place, LLC
|
|
EDR
▇▇▇▇▇▇▇▇ Limited Partnership
|
▇▇▇▇
Place (DE), LLC
|
|
EDR
▇▇▇▇▇▇▇▇, Inc.
|
University
Towers Building LLC
|
|
EDR
▇▇▇▇▇▇▇▇, LLC
|
University
Towers OP GP, LLC
|
|
EDR
Limpar, LLC
|
University
Towers Operating Partnership, LP
|
|
EDR
Lubbock Limited Partnership
|
University
Towers Raleigh, LLC
|
|
EDR
Lubbock, Inc.
|
University
Towers Raleigh Services, LLC
|
|
EDR
Lubbock, LLC
|
Western
Place, LLC
|
|
EDR
Manager, LLC
|
|
|
EDR
Murfreesboro, LLC
|
|
|
EDR
▇▇▇▇▇▇, LLC
|
|
|
EDR
Orlando Limited Partnership
|
|
|
EDR
Orlando, Inc.
|
|
|
EDR
Orlando, LLC
|
|
|
EDR
Oxford, LLC
|
|
|
EDR
Riverside, LLC
|
|
|
EDR
State College Limited Partnership
|
S-IV