Attached files
file | filename |
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8-K - FORM 8-K - Pebblebrook Hotel Trust | w84372e8vk.htm |
EX-8.1 - EX-8.1 - Pebblebrook Hotel Trust | w84372exv8w1.htm |
EX-5.1 - EX-5.1 - Pebblebrook Hotel Trust | w84372exv5w1.htm |
EX-99.1 - EX-99.1 - Pebblebrook Hotel Trust | w84372exv99w1.htm |
EX-99.2 - EX-99.2 - Pebblebrook Hotel Trust | w84372exv99w2.htm |
Exhibit 1.1
EXECUTION COPY
PEBBLEBROOK HOTEL TRUST
(a Maryland Real Estate Investment Trust)
3,000,000 8.00% Series B Cumulative Redeemable Preferred Shares
PURCHASE AGREEMENT
Dated: September 14, 2011
PEBBLEBROOK HOTEL TRUST
(a Maryland Real Estate Investment Trust)
3,000,000 8.00% Series B Cumulative Redeemable Preferred Shares
(Liquidation Preference $25 Per Share)
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
September 14, 2011
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
880 Carillon Parkway
St. Petersburg, Florida 33716
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Incorporated
One Bryant Park
New York, New York 10036
Wells Fargo Securities, LLC
301 S. College Street
Charlotte, North Carolina 28202
301 S. College Street
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Pebblebrook Hotel Trust, a Maryland real estate investment trust (the Company), and
Pebblebrook Hotel, L.P., a Delaware limited partnership and the operating partnership of the
Company (in such capacity, the Operating Partnership), each confirms its agreement with Raymond
James & Associates, Inc. (Raymond James), Merrill Lynch, Pierce, Fenner & Smith Incorporated
(Merrill Lynch) and Wells Fargo Securities, LLC (Wells Fargo), and each of the other
Underwriters named in Schedule A hereto (collectively, the Underwriters, which term shall also
include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Raymond
James, Merrill Lynch and Wells Fargo are acting as representatives (in such capacity, the
Representatives), with respect to (i) the sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of 8.00% Series B
Cumulative Redeemable Preferred Shares (liquidation preference $25 per share), par value $0.01 per
share, of the Company (the Series B Shares) set forth in Schedule A hereto and (ii) the grant by
the Company to the Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 400,000 additional Series B Shares to cover
overallotments, if any. The aforesaid 3,000,000 Series B Shares (the Initial Securities) to be
purchased by the Underwriters and all or any part of the 400,000 Series B Shares subject to the
option described in Section 2(b) hereof (the Option Securities) are hereinafter called,
collectively, the Securities.
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the Commission) an
automatic shelf registration statement on Form S-3 (No. 333-173468) (the Base Registration
Statement), including the related base prospectus, covering the registration of the offer and sale
of certain securities, including the Securities, under the Securities Act of 1933, as amended (the
1933 Act) and the rules and regulations of the Commission under the 1933 Act (the 1933 Act
Regulations), which Base Registration Statement became effective under Rule 462(e) of the 1933 Act
Regulations. Promptly after execution and delivery of this Agreement, the Company will prepare and
file a prospectus supplement in accordance with the provisions of Rule 430B (Rule 430B) of the
1933 Act Regulations and paragraph (b) of Rule 424 (Rule 424(b)) of the 1933 Act Regulations.
Any information included in such prospectus supplement that was omitted from the Base Registration
Statement at the time it became effective but that is deemed to be part of and included therein
pursuant to Rule 430B is referred to as Rule 430B Information. The base prospectus and
prospectus supplement used in connection with the offering of the Securities that omitted Rule 430B
Information, but including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 of the 1933 Act at the time of first use of such prospectus, is hereinafter collectively
called a preliminary prospectus. The Base Registration Statement, at any given time, including
the amendments thereto at such time, the exhibits and any schedules thereto at such time, the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 of 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 called the Registration Statement; provided, however, that
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 (within the meaning of Rule 430B(f)(2) of the 1933 Act Regulations (Rule
430B(f)(2))) of the Registration Statement with respect to the Underwriters and the Securities;
and provided, further, that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations relating to the Securities (the
Rule 462(b) Registration Statement), then, after such filing, all references to Registration
Statement shall also be deemed to include the Rule 462(b) Registration Statement. The base
prospectus and the final prospectus supplement, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 of the 1933 Act at the time of the execution of
this Agreement, is hereinafter collectively called the Prospectus.
Unless the context requires otherwise, all references in this Agreement to documents,
financial statements and schedules and other information which is contained, included,
stated, described in or referred to in the Registration Statement, the General Disclosure
Package (as defined below), any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to include all such documents, financial statements and schedules and
other information that is incorporated by reference in, or otherwise deemed by the 1933 Act
Regulations to be a part of or included in, the Registration Statement, the General Disclosure
Package, any preliminary prospectus or the Prospectus, as the case may be, at the time of execution
of this Agreement; and all references in this Agreement to amendments or supplements to the
Registration Statement, the General Disclosure Package, any preliminary prospectus or the
Prospectus shall be deemed to include any document filed under the Securities Exchange Act of 1934,
as amended (the 1934 Act), that is incorporated by reference in, or otherwise deemed by the 1933
Act Regulations to be a part of or included in, the Registration Statement, the General Disclosure
Package, such preliminary prospectus or the Prospectus, as the case may be, after the execution of
this Agreement.
For purposes of this Agreement, all references to the Registration Statement, any preliminary
prospectus, 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 (EDGAR).
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating Partnership. The Company
and the Operating Partnership, jointly and severally, represent and warrant to each Underwriter as
of the date hereof, as of the Applicable Time referred to in Section 1(a)(i) hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery (as defined
below), if any, referred to in Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 in connection with the issuance of the Securities. The
Registration Statement became effective upon filing with the Commission under the 1933 Act,
and no stop order suspending the effectiveness of the Registration Statement 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, and any request on
the part of the Commission for additional information has been complied with. The date of
this Agreement is not more than three years subsequent to the initial effective date of the
Base Registration Statement.
At the respective times the Base Registration Statement and any amendment thereto
(including the filing with the Commission of the Companys Annual Report on Form 10-K for
the year ended December 31, 2010) became effective, at each deemed effective date with
respect to the Underwriters and the Securities pursuant to Rule 430B(f)(2), at the Closing
Time and at each Date of Delivery, if any, the Registration Statement complied, complies and
will comply in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements
therein not misleading.
The Prospectus and each amendment or supplement thereto, if any, at the time the
Prospectus or any such amendment or supplement is issued, at the Closing Time and at each
Date of Delivery, if any, complied, complies and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations, and neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued, or at the Closing Time and at each Date of Delivery, if any,
included, includes or will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied,
comply and will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission under the 1934 Act (the 1934 Act Regulations)
and, when read together with the other information in the Registration Statement, such
preliminary prospectus or the Prospectus, (a) at the time the Base Registration Statement
originally became effective, (b) at the earlier of the time the Prospectus was first used
and the date and time of the first contract of sale of Securities, (c) at the Closing Time
and (d) and at each Date of Delivery, if any, did not and will not include an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
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As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and the
Statutory Prospectus (as defined below) as of the Applicable Time, all considered together
(collectively, the General Disclosure Package), nor (y) any individual Issuer Limited Use
Free Writing Prospectus (as defined below), when considered together with the General
Disclosure Package, included any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As of the time of the filing of the Final Term Sheet (as defined in Section 3(a)
hereof), the General Disclosure Package, when considered together with the Final Term Sheet,
will not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
Applicable Time means 4:30 p.m. (Eastern time) on September 14, 2011 or such other
time as agreed by the Company and the Representatives.
Statutory Prospectus as of any time means the base prospectus and the preliminary
prospectus supplement (including any documents incorporated by reference therein) relating
to the Securities that is included in the Registration Statement immediately prior to that
time.
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 that (i) is
required to be filed with the Commission by the Company, (ii) is a road show that is a
written communication within the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, 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 required to be retained in the Companys
records pursuant to Rule 433(g).
Issuer General Use Free Writing Prospectus means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a bona fide
electronic road show, as defined in Rule 433), as evidenced by its being specified in
Schedule C hereto.
Issuer Limited Use Free Writing Prospectus means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
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 issuer notified or notifies the Representatives as described in Section 3(e),
did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus and
any preliminary or other prospectus deemed to be a part thereof that has not been superseded
or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein.
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Each preliminary prospectus (including the base prospectus filed as part of the Base
Registration Statement or any amendment thereto) complied when so filed in all material
respects with the 1933 Act and the 1933 Act Regulations and each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
At the time of filing the Base Registration Statement, any 462(b) Registration
Statement and any post-effective amendments thereto and at the date hereof, the Company was
not and is not an ineligible issuer, as defined in Rule 405 of the 1933 Act Regulations.
(ii) Well-Known Seasoned Issuer. (A) At the original effectiveness of the
Registration Statement, (B) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
1934 Act or form of prospectus), (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance on the exemption of Rule
163 of the 1933 Act Regulations, and (D) as of the Applicable Time, the Company was and is a
well-known seasoned issuer (as defined in Rule 405 of the 1933 Act Regulations).
(iii) Independent Accountants. KPMG LLP, who has audited the financial
statements and supporting schedules included or incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus is an independent
registered public accounting firm as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included or incorporated
by reference in the Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedules and notes, are accurate in all material
respects and present fairly the financial position of the Company and its consolidated
subsidiaries, at the dates indicated and the statement of operations, shareholders equity
and cash flows of the Company and its consolidated subsidiaries for the periods specified;
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. The supporting schedules, if any, present fairly in accordance with GAAP the
information required to be stated therein. No other financial statements are required to be
set forth in the Registration Statement, the General Disclosure Package or the Prospectus.
The selected financial data and the summary financial information included or incorporated
by reference in the General Disclosure Package and the Prospectus present fairly the
information shown therein and, where applicable, have been compiled on a basis consistent
with that of the audited financial statements included or incorporated by reference in the
Registration Statement or the Prospectus. The pro forma financial statements and the
related notes thereto included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commissions rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. Except as included therein, no historical or pro forma
financial statements or supporting schedules are required to be included or incorporated by
reference in the Registration Statement, the General Disclosure Package or the Prospectus
under the 1933 Act or the 1933 Act Regulations. All disclosures contained in the
Registration Statement, the General Disclosure
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Package or the Prospectus, or incorporated by reference therein, regarding non-GAAP financial
measures (as such term is defined by the rules and regulations of the Commission) comply
with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the
extent applicable.
(v) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs,
business prospects, management, assets or properties of the Company, the Operating
Partnership and their subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a Material Adverse Effect), (B) there have been no
transactions entered into by the Company, the Operating Partnership or any of their
subsidiaries, other than those in the ordinary course of business, which are material with
respect to the Company, the Operating Partnership and their subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the Companys common shares of
beneficial interest, par value $0.01 per share (the Common Shares), and the 7.875% Series
A Cumulative Redeemable Preferred Shares (liquidation preference $25 per share), par value
$0.01 per share, of the Company, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its shares of beneficial interest.
(vi) Good Standing of the Company. The Company has been duly organized and is
validly existing as a real estate investment trust in good standing with the State
Department of Assessments and Taxation of Maryland (the SDAT) and has the requisite power
and authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement, the General Disclosure Package and the Prospectus
and to enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign trust to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect. Complete and correct
copies of the declaration of trust and of the bylaws of the Company and all amendments
thereto have been made available to the Representatives and no changes thereto will be made
subsequent to the date hereof and prior to the Closing Time or, if applicable, each Date of
Delivery.
(vii) Good Standing of Subsidiaries. The only subsidiaries of the Company are
the subsidiaries listed on Exhibit 21.1 to the 10-K and Bruins Owner LLC, Bruins Lessee LLC,
Razorbacks Owner LLC, Razorbacks Lessee LLC, Running Rebels Owner LLC, Running Rebels Lessee
LLC, Wolverines Owner LLC, Wolverines Lessee LLC, Hoosiers Owner LLC, Hoosiers Lessee LLC,
Cardinals Owner LLC and its subsidiaries, and Cardinals Lessee LLC and its subsidiaries.
Each of the Operating Partnership and each other subsidiary has been duly organized and is
validly existing in good standing under the laws of the state of its formation or
organization, has corporate or similar authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement, the General
Disclosure Package and the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material Adverse
Effect. Except as otherwise disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, all of the issued and outstanding equity interests of each
subsidiary, have been duly authorized and validly issued, are fully paid and non-assessable
and are owned by the Company, directly or through subsidiaries,
6
free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
None of the outstanding equity interests of any subsidiary were issued in violation of
the preemptive or similar rights of any securityholder of such subsidiary.
(viii) Capitalization. The authorized, issued and outstanding shares of
beneficial interest in the Company as of June 30, 2011 is as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus (except for subsequent
issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements or
benefit plans referred to in the Registration Statement, the General Disclosure Package and
the Prospectus). The issued and outstanding shares of beneficial interest in the Company
have been duly authorized and validly issued and are fully paid and non-assessable; none of
the outstanding shares of beneficial interest in the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by each of the Company and the Operating Partnership.
(x) Authorization and Description of Securities. The Securities to be
purchased by the Underwriters from the Company have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable, free and clear of any pledge,
lien, encumbrance, security interest or other claim created by the Company, and will be
registered pursuant to Section 12 of the 1934 Act. The Company has executed and filed
articles supplementary (the Series B Articles Supplementary) to the Companys declaration
of trust with the SDAT establishing the terms of the Securities. The Series B Shares
conform to all statements relating thereto contained in the Registration Statement, the
General Disclosure Package and the Prospectus and such description conforms to the rights
set forth in the instruments defining the same; the certificates for the Securities, if any,
are in due and proper form; no holder of the Securities will be subject to personal
liability by reason of being such a holder; and the issuance of the Securities is not
subject to any statutory or contractual preemptive rights, resale rights, rights of first
refusal or other similar rights of any securityholder of the Company.
(xi) Authorization of Common Shares Upon Conversion. The Common Shares
issuable upon conversion of the Securities have been duly authorized and, when issued upon
conversion of the Securities in accordance with the terms of the Series B Articles
Supplementary, will be validly issued and fully paid and non-assessable free and clear of
any pledge, lien, encumbrance, security interest or other claim created by the Company. The
Company has duly and validly reserved such Common Shares for issuance upon conversion of the
Securities. The Common Shares conform to all statements relating thereto contained in the
Registration Statement, the General Disclosure Package and the Prospectus and such
description conforms to the rights set forth in the instruments defining the same; the
certificates, if any, for such Common Shares issuable upon conversion of the Securities are
in due and proper form; no holder of the Securities will be subject to personal liability by
reason of being such a holder; and the issuance of the Securities is not subject to any
statutory or contractual preemptive rights, resale rights, rights of first refusal or other
similar rights of any securityholder of the Company.
(xii) Absence of Defaults and Conflicts. None of the Company, the Operating
Partnership or any of their subsidiaries is in violation of its declaration of trust,
partnership agreement, charter, bylaws or similar organizational documents, as the case may
be, or in default in the performance or observance of any obligation, agreement, covenant or
condition contained
7
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their
subsidiaries is a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company, the Operating Partnership or any subsidiary is subject
(collectively, Agreements and Instruments) except for such defaults that would not result
in a Material Adverse Effect; and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein and in the Registration
Statement, the General Disclosure Package and the Prospectus (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the Securities as
described therein under the caption Use of Proceeds) and compliance by the Company, the
Operating Partnership and their subsidiaries with their respective obligations hereunder
have been duly authorized by all necessary action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Company,
the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the declaration of trust, partnership
agreement, charter, or bylaws, as the case may be, of the Company, the Operating
Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary
or any of their assets, properties or operations. As used herein, a Repayment Event means
any event or condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holders behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company,
the Operating Partnership or any subsidiary.
(xiii) Absence of Labor Dispute. (A) No labor dispute with the employees of
the Company, the Operating Partnership or any subsidiary exists or, to the knowledge of the
Company, is imminent, and (B) the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its, the Operating Partnerships or any subsidiarys
principal suppliers, manufacturers, customers or contractors, which, in the case of (A) or
(B), would result in a Material Adverse Effect.
(xiv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company or the Operating Partnership,
threatened, against or affecting the Company, the Operating Partnership or any subsidiary,
which is required to be disclosed in the Registration Statement (other than as disclosed
therein), or which might result in a Material Adverse Effect, or which might materially and
adversely affect the properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company or the Operating
Partnership of their respective obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company, the Operating Partnership or any subsidiary
is a party or of which any of their respective property or assets is the subject which are
not described in the Registration Statement, the General Disclosure Package and the
Prospectus, including ordinary routine litigation incidental to the business, could not
result in a Material Adverse Effect.
(xv) Accuracy of Descriptions. The descriptions in the Registration Statement,
the General Disclosure Package, the Prospectus or the documents incorporated by reference
therein, if any, of affiliate transactions, contracts required to be described therein and
other legal
8
documents are true and correct in all material respects, and there are no
affiliate transactions, contracts or other documents of a character required to be described in the
Registration Statement, the General Disclosure Package and the Prospectus, if any, or to be
filed as exhibits to the Registration Statement which are not described or filed as
required. All agreements between the Company and any other party expressly referenced in
the Registration Statement, the General Disclosure Package and the Prospectus are, or will
be at the Closing Time, legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors rights generally and by general equitable principles.
(xvi) Possession of Intellectual Property. Each of the Company, the Operating
Partnership and their subsidiaries owns or possesses, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, Intellectual Property) necessary to conduct its business as
described in the Registration Statement, the General Disclosure Package and the Prospectus,
and none of the Company, the Operating Partnership or any of their subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the interest of the
Company, the Operating Partnership or any of their subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xvii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
or the Operating Partnership of their respective obligations hereunder in connection with
the offering, issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except for the filing of the Series B Articles
Supplementary or such as have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws or as may be required by the Financial
Industry Regulatory Authority, Inc. (FINRA).
(xviii) Absence of Manipulation. None of the Company, the Operating
Partnership or any affiliate of the Company or the Operating Partnership has taken, nor will
the Company, the Operating Partnership or any affiliate of the Company or the Operating
Partnership take, directly or indirectly, any action which is designed to or which has
constituted or which would be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the
Securities.
(xix) Possession of Licenses and Permits. Each of the Company, the Operating
Partnership and their subsidiaries possesses such permits, licenses, approvals, consents and
other authorizations issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies currently necessary to conduct its business as described in the
Registration Statement, the General Disclosure Package and the Prospectus (collectively,
Governmental Licenses), except where the failure so to possess would not, singly or in the
aggregate, result in a Material Adverse Effect; each of the Company, the Operating
Partnership and their subsidiaries is in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to
9
comply would not, singly or in
the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not, singly or in the aggregate, result in a Material Adverse
Effect; and none of the Company, the Operating Partnership or their subsidiaries has
received any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xx) Title to Property. The Company, the Operating Partnership and their
subsidiaries have good and marketable title to all real property owned by the Company, the
Operating Partnership and their subsidiaries and good title to all other properties owned by
them, in each case free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are described in the
Registration Statement, the General Disclosure Package and the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company, the
Operating Partnership or any of their subsidiaries; and all of the leases and subleases
material to the business of the Company, the Operating Partnership and their subsidiaries,
considered as one enterprise, and under which the Company, the Operating Partnership or any
of their 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 any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the Company, the
Operating Partnership or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company, the Operating Partnership or
such subsidiary to the continued possession of the leased or subleased premises under any
such lease or sublease.
(xxi) Investment Company Act. The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Registration Statement, the General Disclosure Package and the
Prospectus will not be, required to register as an investment company as such term is
defined in the Investment Company Act of 1940, as amended (the 1940 Act).
(xxii) Compliance with and Liability under Environmental Laws. The Company,
the Operating Partnership or their subsidiaries have received and reviewed environmental
reports on all real property owned by them. Except as otherwise set forth in the
Registration Statement, the General Disclosure Package and the Prospectus: (i) the Company
is in compliance with, and none of the Company, the Operating Partnership nor any of their
subsidiaries has any liability with respect to the real property owned by the Company, the
Operating Partnership and their subsidiaries under, applicable Environmental Laws (as
defined below) except for such non-compliance or liability that would not be reasonably
likely to result in a Material Adverse Effect; (ii) none of the Company, the Operating
Partnership or any of their 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. Secs. 9601-9675 (CERCLA)) or otherwise disposed of or
handled, Hazardous Materials (as defined below) on, to or from any real property owned by
the Company, the Operating Partnership and their subsidiaries, except for such releases,
disposals and handlings as would not be reasonably likely to result in a Material Adverse
Effect; (iii) none of the Company, the Operating Partnership or any of their subsidiaries
knows of any seepage, leak, discharge, release, emission, spill or dumping of Hazardous
Materials into waters (including, but not limited to, groundwater and
10
surface water) on,
beneath or adjacent to any real property owned by the Company, the Operating
Partnership and their subsidiaries, other than such matters as would not be reasonably
likely to result in a Material Adverse Effect; (iv) none of the Company, the Operating
Partnership or any of their subsidiaries has received any written notice of a claim (or has
any knowledge of any occurrence or circumstance that, with notice or passage of time or
both, would be reasonably likely to give rise to a claim) under or pursuant to any
Environmental Law by any governmental or quasi-governmental body or any third party with
respect to any real property owned by the Company, the Operating Partnership and their
subsidiaries or arising out of the conduct of the business of the Company, the Operating
Partnership or any of their subsidiaries at the real property owned by the Company, the
Operating Partnership and their subsidiaries, except for such claims that would not be
reasonably likely to result in a Material Adverse Effect or that would not be required to be
disclosed in the Registration Statement, the General Disclosure Package or the Prospectus;
(v) none of the real property owned by the Company, the Operating Partnership and their
subsidiaries is included or, to the knowledge of the Company, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA by the United States Environmental
Protection Agency or on any similar list or inventory issued by any other federal, state or
local governmental authority having or claiming jurisdiction over such properties pursuant
to any other Environmental Law, other than such inclusions or proposed inclusions as would
not be reasonably likely to result in a Material Adverse Effect; and (vi) there are no
pending administrative, regulatory or judicial actions, suits, demands, claims, notices of
noncompliance or violation, investigations or proceedings relating to any applicable
Environmental Laws against the Company, the Operating Partnership, any of their subsidiaries
or the real property owned by the Company, the Operating Partnership and their subsidiaries
that would be reasonably likely to result in a Material Adverse Effect. As used herein,
Hazardous Material shall include any flammable explosives, radioactive materials,
chemicals, pollutants, contaminants, wastes, hazardous wastes, toxic substances, mold and
any hazardous material as defined by or regulated under any Environmental Law, including
without limitation, petroleum or petroleum products and asbestos-containing materials. As
used herein, Environmental Law shall mean any applicable foreign, federal, state or local
law (including statute or common law), ordinance, rule, regulation, or judicial or
administrative order, consent decree or judgment relating to the protection of human health,
the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without limitation, CERCLA, the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Secs. 5101-5127, the Solid
Waste Disposal Act, as amended, 42 U.S.C. Secs. 6901-6992k, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Secs. 11001-11050, the Toxic Substances
Control Act, 15 U.S.C. Secs. 2601-2692, the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. Secs. 136-136y, the Clean Air Act, 42 U.S.C. Secs. 7401-7671q, the Clean Water
Act (Federal Water Pollution Control Act), 33 U.S.C. Secs. 1251-1387, and the Safe Drinking
Water Act, 42 U.S.C. Secs. 300f-300j-26, as any of the above statutes have been amended from
time to time, and the regulations promulgated pursuant to any of the foregoing.
(xxiii) Condition of Properties. The Company, the Operating Partnership or
their subsidiaries have received and reviewed property condition reports on all real
property owned by the Company, the Operating Partnership and their subsidiaries. Except as
otherwise set forth in the Registration Statement, the General Disclosure Package and the
Prospectus: (i) none of the real property owned by the Company, the Operating Partnership
and their subsidiaries is in violation of any applicable building code, zoning ordinance or
other law or regulation, except where such violation of any applicable building code, zoning
ordinance or other law or regulation would not, singly or in the aggregate, have a Material
Adverse Effect; (ii) none of the Company, the Operating Partnership or any of their
subsidiaries has received written notice of any proposed
11
material special assessment or any
proposed change in any property tax, zoning or land use laws
or availability of water affecting any real property owned by the Company, the
Operating Partnership and their subsidiaries that would, singly or in the aggregate, have a
Material Adverse Effect; (iii) there does not exist any violation of any declaration of
covenants, conditions and restrictions with respect to any real property owned by the
Company, the Operating Partnership and their subsidiaries that would, singly or in the
aggregate, have a Material Adverse Effect, or any state of facts or circumstances or
condition or event that could, with the giving of notice or passage of time, or both,
constitute such a violation; and (iv) the developments or improvements comprising any
portion of real property owned by the Company, the Operating Partnership and their
subsidiaries (the Developments and Improvements) are free of any physical, mechanical,
structural, design or construction defects that would, singly or in the aggregate, have a
Material Adverse Effect and the mechanical, electrical and utility systems servicing the
Developments and Improvements (including, without limitation, all water, electric, sewer,
plumbing, heating, ventilation, gas and air conditioning) are in good condition and proper
working order, reasonable wear and tear and need for routine repair and maintenance
excepted, and are free of defects, except for such failures and defects that would not,
singly or in the aggregate, have a Material Adverse Effect.
(xxiv) Access and Utilities. All of the real property owned by the Company,
the Operating Partnership and their subsidiaries has rights of access to public ways and is
served by electric, water, sewer, sanitary sewer and storm drain facilities adequate to
service real property owned by the Company, the Operating Partnership and their subsidiaries
for its use as described in the Registration Statement, General Disclosure Package and the
Prospectus.
(xxv) No Condemnation. No condemnation or other proceeding has been commenced
that has not been completed, and, to the Companys or the Operating Partnerships knowledge,
no such proceeding is threatened, with respect to all or any portion of the real property
owned by the Company, the Operating Partnership and their subsidiaries or for the relocation
away from any such property of any roadway providing access to such property or any portion
thereof.
(xxvi) Registration Rights. There are no persons with registration rights or
other similar rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xxvii) Accounting Controls and Disclosure Controls. Each of the Company, the
Operating Partnership and their subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are executed in
accordance with managements general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (C) access to assets is permitted only in
accordance with managements general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the
Registration Statement, the General Disclosure Package and the Prospectus, since the date of
the Companys formation, there has been (1) no material weakness in the Companys internal
control over financial reporting (whether or not remediated) and (2) no change in the
Companys internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Companys internal control over financial
reporting. The Company and its consolidated subsidiaries maintain disclosure controls and
procedures that are effective to perform the functions for which they were established and
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
12
time periods specified in the Commissions rules and forms, and is
accumulated and communicated to the Companys management, including its principal executive officer or
officers and principal financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(xxviii) Compliance with the Sarbanes-Oxley Act. There is and has been no
failure on the part of the Company or any of the Companys trustees or officers, in their
capacities as such, to comply in all material respects with any provisions of the Sarbanes
Oxley Act of 2002 and the rules and regulations promulgated thereunder or implementing the
provisions thereof (the Sarbanes Oxley Act), including Section 402 relating to loans and
Sections 302 and 906 relating to certifications applicable to the Company.
(xxix) Tax Returns and Payment of Taxes. All United States federal income tax
returns of the Company, the Operating Partnership and their subsidiaries required by law to
be filed have been filed and all taxes shown by such returns or otherwise assessed, which
are due and payable, have been paid, except assessments against which appeals have been or
will be promptly taken in good faith and as to which adequate reserves have been provided
and will be maintained except in any case in which the failure to so file tax returns or pay
such taxes would not result in a Material Adverse Effect. Each of the Company, the
Operating Partnership and their subsidiaries has filed all other tax returns that are
required to have been filed by it pursuant to applicable foreign, state, local or other law
except insofar as the failure to file such returns would not result in a Material Adverse
Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Company, the Operating Partnership or their subsidiaries, except for such
taxes, if any, as are being contested in good faith and as to which adequate reserves have
been provided and will be maintained and except insofar as the failure to pay such taxes and
assessments would not result in a Material Adverse Effect. All such returns, if any, are
true, correct and complete in all material respects and were prepared in compliance with
applicable law.
(xxx) Insurance. Each of the Company, the Operating Partnership and their
subsidiaries carries or is entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as the Company believes is
generally maintained by companies of established repute engaged in the same or similar
business, and all such insurance is in full force and effect. The Company has no reason to
believe that it, the Operating Partnership or any of their subsidiaries will not be able (A)
to renew its existing insurance coverage as and when such policies expire or (B) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in a Material Adverse
Effect. None of the Company, the Operating Partnership or any subsidiary has been denied
any insurance coverage which it has sought or for which it has applied.
(xxxi) Statistical and Market-Related Data. The statistical and market-related
data included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus, if any, are based on or derived from sources that the
Company believes to be reliable and accurate.
(xxxii) REIT Qualification. Commencing with its taxable year ended December
31, 2009, the Company has been, and upon the sale of the Securities, the Company will
continue to be, organized and operated in conformity with the requirements for qualification
and taxation as a real estate investment trust (a REIT) under the Internal Revenue Code of
1986, as amended (the Code), and the Companys present and proposed method of operation as
described in the
13
Registration Statement, the General Disclosure Package and the Prospectus
will enable it to continue to meet the requirements for qualification and taxation as a REIT
under the Code.
(xxxiii) Operating Partnership. The Operating Partnership will be classified
as a partnership for purposes of the Code and will not be treated as a publicly traded
partnership, association or corporation.
(xxxiv) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any trustee, officer, agent, employee, affiliate or other person
acting on behalf of the Company, the Operating Partnership or any of their subsidiaries is
aware of or has taken any action, directly or indirectly, that would result in a violation
by any of such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (the FCPA), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
foreign official (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the FCPA
and the Company and, to the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(xxxv) Money Laundering Laws. The operations of each of the Company and the
Operating Partnership have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the
Money Laundering Laws) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or the
Operating Partnership with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(xxxvi) OFAC. Neither the Company nor, to the knowledge of the Company, any
trustee, officer, agent, employee, affiliate or person acting on behalf of the Company or
the Operating Partnership is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Company
will not directly or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to the Operating Partnership or any other subsidiary
or joint venture partner of the Company, the Operating Partnership or any subsidiary 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.
(xxxvii) Partnership Agreement. The Agreement of Limited Partnership of the
Operating Partnership (the Partnership Agreement), has been duly and validly authorized by
the Company, in its capacity as sole General Partner of the Operating Partnership, and at
the Closing Time will be duly executed and delivered by the Company, as general partner, and
will be a valid and binding agreement, enforceable in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors rights generally and by general equitable
principles.
14
(xxxviii) Listing of Securities. The Company has applied to have the
Securities listed on the New York Stock Exchange.
(xxxix) Certain Relationships. No relationship, direct or indirect, exists
between or among the Company, the Operating Partnership or any of their subsidiaries, on the
one hand, and the trustees, officers, shareholders or partners of the Company, the Operating
Partnership or any of their subsidiaries, on the other hand, which is required by the rules
of FINRA to be described in the Registration Statement, the General Disclosure Package or
the Prospectus which is not so described. The Company has not, directly or indirectly,
including through the Operating Partnership or any other subsidiary, extended credit,
arranged to extend credit, or renewed any extension of credit, in the form of a personal
loan, to or for any trustee or executive officer of the Company, the Operating Partnership
or any of their subsidiaries, or to or for any family member or affiliate of any trustee or
executive officer of the Company, the Operating Partnership or any subsidiary.
(b) Certificates. Any certificate signed by any officer of the Company or the Operating
Partnership and delivered to the Representatives or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company or the Operating Partnership, as the case may be, to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company at the price per share set forth in the Final Term Sheet attached to
Schedule C, the number of Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase up to the number of Option
Securities set forth in Schedule B, at the price per share set forth in the Final Term Sheet
attached to Schedule C, less an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial Securities but not payable on the Option Securities. The
option hereby granted will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering overallotments which may be made in
connection with the offering and distribution of the Initial Securities upon notice by the
Representatives to the Company setting forth the number of Option Securities as to which the
several Underwriters are then exercising the option and the time and date of payment and delivery
for such Option Securities. Any such time and date of delivery (a Date of Delivery) shall be
determined by the Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of the total number
of Option Securities then being purchased which the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities,
subject in each case to such adjustments as the Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of the Securities shall be made
at the offices of Sidley Austin llp, 787 Seventh Avenue, New York, NY 10019, or at such
other place as
15
shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later
than ten business days after such date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called the Closing Time).
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of such Option Securities shall be
made at the above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company against delivery to the Representatives for the respective
accounts of the Underwriters of the Securities to be purchased by them. It is understood that each
Underwriter has authorized Raymond James, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. Raymond James, Merrill Lynch and Wells Fargo, each individually
and not as representative of the Underwriters, may (but shall not be obligated to) make payment of
the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by
any Underwriter whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Operating Partnership. The Company and
the Operating Partnership, jointly and severally, covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. Prior to completion of
the offering and sale of the Securities, the Company, subject to Section 3(b), will comply with the
requirements of Rule 430B, and will notify the Representatives immediately, and confirm the notice
in writing, (i) when any post-effective amendment to the Registration Statement or new registration
statement relating to the Securities shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the Registration Statement
or the filing of a new registration statement or any amendment or supplement to the Prospectus,
including any document incorporated by reference therein, or for additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or such new registration statement or of any order preventing or suspending the use of
any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act
concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding
under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company
will effect the filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
16
filing under Rule
424(b) was received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. Prior to completion of the offering and sale of the Securities, the
Company will make every reasonable effort to prevent the issuance of any stop order and, if any
stop
order is issued, to obtain the lifting thereof at the earliest possible moment. The Company
will prepare a final term sheet substantially in the form set forth as an attachment to Schedule C
hereto (the Final Term Sheet) reflecting the final terms of the Securities, and shall file such
Final Term Sheet as an issuer free writing prospectus pursuant to Rule 433 prior to the close of
business two business days after the date hereof; provided that the Company shall furnish the
Underwriters with copies of any such Final Term Sheet a reasonable amount of time prior to such
proposed filing and will not use or file any such document to which the Underwriters or counsel to
the Underwriters shall reasonably object.
(b) Filing of Amendments and Exchange Act Documents. The Company will give the
Representatives notice of its intention to file or prepare any amendment to the Registration
Statement or new registration statement relating to the Securities or any amendment, supplement or
revision to any preliminary prospectus (including the prospectus included in the Base Registration
Statement or amendment thereto at the time it became effective) or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the
Representatives with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters reasonably shall object. The Company has given the
Representatives notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations
within 48 hours prior to the execution of this Agreement; the Company will give the Representatives
notice of its intention to make any such filing from the Applicable Time to the Closing Time and
will furnish the Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge,
as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered (or but for the exception afforded by Rule 172 would be required to be
delivered) under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required (or but for the exception afforded by Rule 172 would be
required) by
17
the 1933 Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration Statement or to file a
new registration statement or amend or
supplement the Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or to file a new registration statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof,
such amendment, supplement or new registration statement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus comply with such
requirements, the Company will use its best efforts to have such amendment or new registration
statement declared effective as soon as practicable (if it is not an automatic shelf registration
statement with respect to the Securities) and the Company will furnish to the Underwriters such
number of copies of such amendment, supplement or new registration statement as the Underwriters
may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration
Statement (or any other registration statement relating to the Securities) 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 Representatives 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.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the Representatives may designate
and to maintain such qualifications in effect for a period of not less than one year from the date
of this Agreement; provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign trust or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under Use of Proceeds.
(i) Listing. The Company will use its best efforts to effect the listing of the Securities on
the New York Stock Exchange within the time period specified in the Prospectus.
(j) Books and Records; Accounting Controls and Disclosure Controls. Each of the Company, the
Operating Partnership and their subsidiaries will maintain and keep accurate books and records
reflecting their assets and will maintain a system of internal accounting controls sufficient to
provide reasonable assurances that: (A) transactions are executed in accordance with managements
general or specific authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain accountability for assets; (C)
access to
18
assets is permitted only in accordance with managements general or specific
authorization; and (D) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences.
The Company, the Operating Partnership and their subsidiaries will employ disclosure controls
and procedures that are effective to perform the functions for which they were established and
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 Commissions rules and forms, and is accumulated and communicated to
the Companys management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(k) REIT Qualification. The Company will use its best efforts to continue to meet the
requirements for qualification as a REIT under the Code for each of its taxable years for so long
as the Board of Trustees of the Company deems it in the best interests of the Company and its
shareholders to remain so qualified.
(l) Compliance with the Sarbanes-Oxley Act. The Company will take all necessary actions to
comply with the provisions of the Sarbanes-Oxley Act.
(m) Restriction on Sale of Securities. During a period of 30 days from the date of the
Prospectus, the Company will not, without the prior written consent of the Representatives,
directly or indirectly (i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale
of, or lend or otherwise transfer or dispose of any Series B Shares or any securities convertible
into or exercisable or exchangeable for or repayable with Series B Shares, whether owned as of the
date hereof or hereafter acquired or with respect to which such person has or hereafter acquires
the power of disposition, or file, or cause to be filed, any registration statement under the 1933
Act with respect to any of the foregoing (collectively, the Lock-Up Securities) or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether
any such swap, agreement or transaction is to be settled by delivery of Series B Shares or other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to
be sold hereunder, (B) any Series B Shares issued pursuant to the Companys 2009 Equity Incentive
Plan or dividend reinvestment plan in each case, as described in the Registration Statement, the
General Disclosure Package and the Prospectus and (C) Series B Shares issued in connection with the
acquisition of property or assets or upon conversion of securities issued in connection with the
acquisition of any property or assets, provided the recipient thereof agrees in writing to be bound
by the restrictions set forth in this Section 3(m). Notwithstanding the foregoing, if (1) during
the last 17 days of the 30-day restricted period the Company issues an earnings release or material
news or a material event relating to the Company occurs or (2) prior to the expiration of the
30-day restricted period, the Company announces that it will release earnings results or becomes
aware that material news or a material event will occur during the 16-day period beginning on the
last day of the 30-day restricted period, the restrictions imposed in this clause (m) 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 news or material event, unless the
Representatives waive in writing, such extension. The Company will provide the Representatives
with prior notice of any such announcement that gives rise to an extension of the restricted
periods.
(n) Reporting Requirements. The Company, during the period when a prospectus is required (or
but for the exception in Rule 172 would be required) to be delivered under the 1933 Act, will file
all documents required to be filed with the Commission pursuant to the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
19
(o) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it
obtains the prior consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representatives, 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; provided, however,
that prior to the preparation of the Final Term Sheet in accordance with Section 3(a) hereof, the
Underwriters are authorized to use the information with respect to the final terms of the
Securities in communications conveying information relating to the offering to investors. Any such
free writing prospectus consented to by the Company and the Representatives, which includes the
Final Term Sheet, is hereinafter referred to 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.
(p) Filing of Series B Articles Supplementary. The Company will use its best efforts to file,
prior to the Closing Time, with the SDAT the Series B Articles Supplementary.
(q) Reservation of Common Shares. The Company will reserve the maximum number of Common
Shares issuable upon conversion of the Securities until such time as such Common Shares have been
issued or the Series B Shares have been redeemed.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and/or the Operating Partnership will pay or cause to be paid all
expenses incident to the performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and
delivery to the Underwriters of this Agreement and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the
Companys and the Operating Partnerships counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey
and any supplement thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the costs and expenses of the
Company relating to investor presentations on any road show undertaken in connection with the
marketing of the Securities, including without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, (x) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms
of the sale of the Securities, (xi) the fees and expenses incurred in connection with the listing
of the Securities on the New York Stock Exchange and (xii) the costs and expenses (including
without limitation any damages or other amounts payable in connection with legal or
20
contractual liability) associated with the reforming of any contracts for sale of the
Securities made by the Representatives caused by a breach of the representation contained in the
third paragraph of Section 1(a)(i).
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i) or Section 11 hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company and the Operating Partnership contained in Section 1 hereof or in certificates of any
officer of the Company or of the Company as general partner of the Operating Partnership delivered
pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership
of their respective covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has been declared
effective and at the Closing Time 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. Each
preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been
filed with the Commission in the manner and within the time frame 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 declared effective in accordance with the requirements of Rule 430B.
(b) Opinion of Counsel for the Company and the Operating Partnership. At the Closing Time,
the Representatives shall have received the favorable opinions, dated as of the Closing Time, of
Hunton & Williams LLP and Venable LLP, counsel for the Company and the Operating Partnership, in
form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth in Exhibits A-1,
A-2, A-3 and B hereto, respectively.
(c) Opinion of Counsel for the Underwriters. At the Closing Time, the Representatives shall
have received the favorable opinion, dated as of the Closing Time, of Sidley Austin llp,
counsel for the Underwriters, together with signed or reproduced copies of such letter for each of
the other Underwriters with respect to such matters as the Representatives shall reasonably
request. In giving such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel satisfactory to the Representatives.
(d) Company Officers Certificate. At the Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is given in the Registration
Statement, the Prospectus or the General Disclosure Package, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs, business prospects,
management, assets or properties of the Company and the Operating Partnership considered as one
enterprise, whether or not arising in the ordinary course of business, and the Representatives
shall have received a certificate of an executive officer of the Company dated as of the Closing
Time, to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or satisfied at or prior
21
to the Closing Time and (iv) 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 their knowledge, contemplated by the Commission.
(e) Company Chief Financial Officers Certificate. The Representatives shall have received a
certificate of the Chief Financial Officer of the Company, dated as of the date of this Agreement,
certifying to the accuracy of certain financial information contained in the Prospectus.
(f) Operating Partnership Certificate. The Representatives shall have received a certificate
of an executive officer of the Company, as general partner of the Operating Partnership, dated as
of the Closing Time, to the effect that (i) the representations and warranties in Section 1(a)
applicable to the Operating Partnership are true and correct with the same force and effect as
though expressly made at and as of the Closing Time and (ii) the Operating Partnership has complied
with all agreements and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time.
(g) Accountants Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received from KPMG LLP a letter dated such date, in form and substance
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 or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus.
(h) Bring-down Comfort Letter. At the Closing Time, the Representatives shall have received
from KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of this Section, except that the
specified cut-off date for the procedures referred to shall be a date not more than three business
days prior to the Closing Time.
(i) Approval of Listing. At the Closing Time, the Securities shall have been approved for
listing on the New York Stock Exchange, subject only to official notice of issuance.
(j) No Objection. FINRA shall have confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and arrangements.
(k) Conditions to Purchase of Option Securities. In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company and the Operating Partnership
contained herein and the statements in any certificates furnished by the Company and the Operating
Partnership hereunder shall be true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the Representatives shall have received:
(i) Company Officers Certificate. A certificate, dated such Date of Delivery,
of an executive officer of the Company confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(ii) Company Chief Financial Officers Certificate. A certificate, dated such
Date of Delivery, of the Chief Financial Officer of the Company, confirming that the
certificate delivered as of the date of this Agreement pursuant to Section 5(e) remains true
and correct as of such Date of Delivery.
22
(iii) Operating Partnership Certificate. A certificate, dated such Date of
Delivery, of an executive officer of the Company, as general partner of the Operating
Partnership, confirming that the certificate delivered at the Closing Time pursuant to
Section 5(f) hereof remains true and correct as of such Date of Delivery.
(iv) Opinion of Counsel for the Company and the Operating Partnership. The
opinions of Hunton & Williams LLP and Venable LLP, counsel for the Company and the Operating
Partnership, dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the form of opinions set forth
in Exhibits A-1, A-2, A-3 and B hereto.
(v) Opinion of Counsel for the Underwriters. The favorable opinion of Sidley
Austin llp, counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(vi) Bring-down Comfort Letter. A letter from KPMG LLP, in form and substance
satisfactory to the Representatives and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the Representatives pursuant to Section
5(g) hereof, except that the specified date in the letter furnished pursuant to this
paragraph shall be a date not more than three days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, 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 in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company at any time at or prior to the Closing
Time or such Date of Delivery, as the case may be, and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters by the Company and the Operating Partnership. The Company
and the Operating Partnership, jointly and severally, agree to indemnify and hold harmless each
Underwriter, its affiliates, as such term is defined in Rule 501(b) of the 1933 Act Regulations
(each, an Affiliate), its selling agents and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information or the omission or alleged omission therefrom of a material fact required to be
stated
23
therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or 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 6(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)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the Rule 430B Information,
or any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package
or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Company, the Operating Partnership, Trustees and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, the Operating Partnership,
their trustees, each of their officers who signed the Registration Statement, and each person, if
any, who controls either the Company or the Operating Partnership within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this Section, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the Rule 430B Information
or any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package
or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the Representatives
expressly for use therein. The Company and the Operating Partnership hereby acknowledge that the
only information that the Underwriters have furnished to the Company expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430B Information, or any
preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto) are the statements set forth in the fifth
paragraph under the caption Underwriting in the Prospectus.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have
24
otherwise than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. 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 6(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.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Operating Partnership on the one
hand and the Underwriters on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Operating Partnership on the one hand
and of the Underwriters on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Operating Partnership on the one hand
and the Underwriters on the other hand in connection with the offering of the Securities pursuant
to this Agreement shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the Operating Partnership and the total underwriting discount received
by the Underwriters, in each case as set forth on the cover of the Prospectus bear to the aggregate
initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Operating Partnership on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other things, whether any
such
25
untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company, the Operating Partnership or by the
Underwriters and the parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by
an indemnified party and referred to above in this Section 7 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the underwriting commissions received by
such Underwriter in connection with the Securities underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriters
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company or the Operating Partnership within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company and the Operating Partnership. The Underwriters respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of Initial Securities
set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or the Operating Partnership submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors, any person controlling the Company or the Operating Partnership and (ii)
delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if in the sole judgment of the
Representatives there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Registration Statement, the General
Disclosure Package or the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, business prospects, management, assets or
properties of the Company, the Operating Partnership and their subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or
26
(ii) if there has occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the sole judgment of the Representatives, impracticable or inadvisable to market
the Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange or in the Nasdaq Global
Select Market has been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, FINRA or any other governmental authority, or (iv) a
material disruption has occurred in commercial banking or securities settlement or clearance
services in the United States, or (v) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which
it or they are obligated to purchase under this Agreement (the Defaulted Securities), the
Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives have not completed such arrangements within such
24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to
be purchased on such date, this Agreement (or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting Underwriter or the
Company or the Operating Partnership.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either (i) the Representatives or (ii) the Company shall
have the right to postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
Underwriter includes any person substituted for an Underwriter under this Section 10.
27
SECTION 11. Default by the Company. If the Company shall fail at the Closing Time or,
at the Date of Delivery, if any, to sell the number of Securities that it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall
remain in full force and effect. No action taken pursuant to this Section shall relieve the
Company from liability, if any, in respect of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this Agreement,
from the commencement of discussions with respect to the transactions contemplated hereby, the
Company and the Operating Partnership (and each employee, representative or other agent of the
Company) may disclose to any and all persons, without limitation of any kind, the tax treatment and
tax structure (as such terms are used in Sections 6011, 6111 and 6112 of the Code and the Treasury
regulations promulgated thereunder) of the transactions contemplated by this Agreement and all
materials of any kind (including opinions or other tax analyses) that are provided relating to such
tax treatment and tax structure.
SECTION 13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to: Raymond James &
Associates, Inc. at 880 Carillon Parkway, St. Petersburg, Florida 33716, to the attention of
General Counsel, Equity Capital Markets; Merrill Lynch, Pierce, Fenner & Smith Incorporated at One
Bryant Park, New York, New York 10036, to the attention of High Grade Transaction Management/Legal,
with a copy to ECM Legal; and Wells Fargo Securities, LLC at 301 S. College Street, Charlotte,
North Carolina, to the attention of Transaction Management, facsimile (704) 383-9165. Notices to
the Company shall be directed to it at 2 Bethesda Metro Center, Suite 1530, Bethesda, MD 20814,
attention of Jon E. Bortz; and notices to the Operating Partnership shall be directed to the
Company, as general partner of the Operating Partnership, at 2 Bethesda Metro Center, Suite 1530,
Bethesda, MD 20814, to the attention of Jon E. Bortz.
SECTION 14. No Advisory or Fiduciary Relationship. Each of the Company and the
Operating Partnership acknowledges, and agrees, that: (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arms-length commercial transaction
between the Company and the Operating Partnership, on the one hand, and the several Underwriters,
on the other hand; (b) 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 or the Operating Partnership, or their shareholders, creditors,
employees or any other party; (c) 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; (d) 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 or the Operating
Partnership; and (e) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company and the Operating
Partnership have consulted their own legal, accounting, regulatory and tax advisors to the extent
they deemed appropriate.
SECTION 15. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company, the Operating Partnership and the
Underwriters, or any of them, with respect to the subject matter hereof.
28
SECTION 16. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company, the Operating Partnership and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Company, the Operating Partnership
and their respective successors and the controlling persons and officers and trustees referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriters, the Company, the Operating Partnership and their respective successors, and said
controlling persons and officers and trustees and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 17. Trial by Jury. Each of the Company (on its behalf and, to the extent
permitted by applicable law, on behalf of its shareholders and affiliates) and the Operating
Partnership and each of the Underwriters hereby irrevocably waives, 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.
SECTION 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 19. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 21. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
29
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company and the Operating Partnership a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between the Underwriters,
the Company and the Operating Partnership in accordance with its terms.
Very truly yours, PEBBLEBROOK HOTEL TRUST |
||||
By: | /s/ Raymond D. Martz | |||
Name: | Raymond D. Martz | |||
Title: | Executive Vice President and
Chief Financial Officer |
|||
PEBBLEBROOK HOTEL, L.P. By Pebblebrook Hotel Trust, its general partner |
||||
By: | /s/ Raymond D. Martz | |||
Name: | Raymond D. Martz | |||
Title: | Executive Vice President and Chief Financial Officer |
|||
CONFIRMED AND ACCEPTED, as of the date first above written: RAYMOND JAMES & ASSOCIATES, INC. |
||||
By: | /s/ Brad Butcher | |||
Authorized Signatory | ||||
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED |
||||
By: | /s/ Jack Vissicchio | |||
Authorized Signatory | ||||
WELLS FARGO SECURITIES, LLC |
||||
By: | /s/ Carolyn Hurley | |||
Authorized Signatory | ||||
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
SCHEDULE A
Number of | ||||
Underwriter | Initial Securities | |||
Raymond James & Associates, Inc. |
680,000 | |||
Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
680,000 | |||
Wells Fargo Securities, LLC |
680,000 | |||
Citigroup Global Markets Inc. |
300,000 | |||
RBC Capital Markets, LLC |
300,000 | |||
Robert W. Baird & Co. Incorporated |
90,000 | |||
Janney Montgomery Scott LLC |
90,000 | |||
Morgan Keegan & Company, Inc. |
90,000 | |||
Stifel, Nicolaus & Company, Incorporated |
90,000 | |||
Total |
3,000,000 | |||
Sch A-1
SCHEDULE B
Number of Initial | Maximum Number of Option | |||||||
Securities to be Sold | Securities to Be Sold | |||||||
Pebblebrook Hotel Trust |
3,000,000 | 400,000 |
Sch B-1
SCHEDULE C
SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS
SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS
Final Term Sheet (attached hereto)
Sch C-1
Dated September 14, 2011
Filed Pursuant to Rule 433
Registration Statement No. 333-173468
Relating to Preliminary Prospectus Supplement
Dated September 13, 2011 to Prospectus Dated April 13, 2011
Filed Pursuant to Rule 433
Registration Statement No. 333-173468
Relating to Preliminary Prospectus Supplement
Dated September 13, 2011 to Prospectus Dated April 13, 2011
PEBBLEBROOK HOTEL TRUST
8.00% Series B Cumulative Redeemable Preferred Shares
(Liquidation Preference $25.00 per share)
(Liquidation Preference $25.00 per share)
FINAL PRICING TERMS
Issuer:
Title of Shares: |
Pebblebrook Hotel Trust
8.00% Series B Cumulative Redeemable Preferred Shares of Beneficial Interest |
|
Number of Shares:
|
3,000,000 shares (3,400,000 shares if the underwriters overallotment option is exercised in full) | |
Maturity:
|
Perpetual (unless redeemed by the Issuer on or after September 21, 2016 or pursuant to its optional redemption right or converted by an investor in connection with certain changes of control) | |
Trade Date:
|
September 14, 2011 | |
Settlement Date:
|
September 21, 2011 (T+5). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade Series B Preferred Shares prior to September 16, 2011 will be required, by virtue of the fact that the Series B Preferred Shares initially settle in T+5, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the Series B Preferred Shares who wish to trade the Series B Preferred Shares prior to their date of delivery hereunder should consult their advisors. | |
Distribution Rate:
|
8.00% per annum of the $25.00 liquidation preference (equivalent to $2.00 per annum per share) | |
Distribution Payment Dates:
|
On or about January 15, April 15, July 15 and October 15 of each year, commencing on October 17, 2011. | |
Conversion Rights:
|
Upon the occurrence of a Change of Control, investors will have the right (unless, prior to the Change of Control Conversion Date, the Issuer has provided or provides notice of its election to redeem their Series B Preferred Shares) to convert some or all of their Series B Preferred Shares (the Change of Control Conversion Right) into a number of the Issuers common shares of beneficial interest, par value $0.01 per share, per Series B Preferred Share to be converted equal to the lesser of: |
Sch C-1
the quotient obtained by dividing (i) the sum
of the $25.00 liquidation preference plus the
amount of any accrued and unpaid distributions
to, but not including, the Change of Control
Conversion Date (unless the Change of Control
Conversion Date is after a record date for a
Series B Preferred Share distribution payment
and prior to the corresponding Series B
Preferred Share distribution payment date, in
which case no additional amount for such accrued
and unpaid distribution will be included in this
sum) by (ii) the Common Share Price; and |
||
3.4483 (the Share Cap), subject to certain
adjustments; |
||
subject, in each case, to provisions for the receipt of alternative consideration, as described in the preliminary prospectus supplement. | ||
If the Issuer has provided or provides a redemption notice, whether pursuant to the Issuers special optional redemption right in connection with a Change of Control or the Issuers optional redemption right, investors will not have any right to convert their Series B Preferred Shares in connection with the Change of Control Conversion Right and any Series B Preferred Shares subsequently selected for redemption that have been tendered for conversion will be redeemed on the related date of redemption instead of converted on the Change of Control Conversion Date. | ||
A Change of Control is when, after the original issuance of the Series B Preferred Shares, the following have occurred and are continuing: | ||
the acquisition by any person, including any
syndicate or group deemed to be a person under
Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, of beneficial ownership,
directly or indirectly, through a purchase,
merger or other acquisition transaction or
series of purchases, mergers or other
acquisition transactions of shares of the Issuer
entitling that person to exercise more than 50%
of the total voting power of all shares of the
Issuer entitled to vote generally in elections
of trustees (except that such person will be
deemed to have beneficial ownership of all
securities that such person has the right to
acquire, whether such right is currently
exercisable or is exercisable only upon the
occurrence of a subsequent condition); and |
||
following the closing of any transaction
referred to in the bullet above, neither the
Issuer nor the acquiring or surviving entity has
a class of common securities (or American
Depositary Receipts representing such
securities) listed on the New York Stock
Exchange, the NYSE Amex Equities or the NASDAQ
Stock Market or listed or quoted on an exchange
or quotation system that is a successor to the
NYSE, the NYSE Amex or NASDAQ. |
Sch C-1
The Change of Control Conversion Date will be a business day that is no fewer than 20 days nor more than 35 days after the date on which the Issuer provides the required notice of the occurrence of a Change of Control to the holders of Series B Preferred Shares. | ||
The Common Share Price will be: (i) the amount of cash consideration per common share, if the consideration to be received in the Change of Control by holders of the Issuers common shares is solely cash; and (ii) the average of the closing prices for the Issuers common shares on the New York Stock Exchange for the 10 consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the consideration to be received in the Change of Control by holders of the Issuers common shares is other than solely cash. | ||
Optional Redemption:
|
On and after September 21, 2016, the Issuer may, at its option, redeem the Series B Preferred Shares, in whole or from time to time in part, by paying $25.00 per share, plus any accrued and unpaid distributions to, but not including, the date of redemption (subject to the special optional redemption right described below). | |
Special Optional Redemption:
|
Upon the occurrence of a Change of Control, the Issuer may, at its option, redeem the Series B Preferred Shares, in whole or in part and within 120 days after the first date on which such Change of Control occurred, by paying $25.00 per share, plus any accrued and unpaid dividends to, but not including, the date of redemption. If, prior to the Change of Control Conversion Date, the Issuer has provided or provides notice of redemption with respect to the Series B Preferred Shares (whether pursuant to the Issuers optional redemption right or its special optional redemption right), investors will not have the conversion right described above. | |
Annual Yield:
|
8.00% | |
Public Offering Price:
|
$25.00 per share | |
Purchase Price by Underwriters:
|
$24.2125 per share | |
Net Proceeds (before expenses):
|
$72,637,500 ($82,322,500 if the underwriters overallotment option is exercised in full) | |
Underwriting Discount:
|
$2,362,500 ($2,677,500 if the underwriters overallotment option is exercised in full) | |
Joint Book-Running Managers:
|
Raymond James & Associates, Inc. Merrill Lynch, Pierce, Fenner & Smith Incorporated Wells Fargo Securities, LLC | |
Senior Co-Managers:
|
Citigroup Global Markets Inc. RBC Capital Markets, LLC | |
Co-Managers:
|
Robert W. Baird & Co. Incorporated |
Sch C-1
Janney Montgomery Scott LLC Morgan Keegan & Company, Inc. Stifel, Nicolaus & Company, Incorporated | ||
Listing/Symbol:
|
NYSE / PEBPrB (to be applied for) | |
ISIN:
|
US70509V3087 | |
CUSIP:
|
70509V 308 |
The issuer has filed a registration statement (including a prospectus dated April 13, 2011 and a
preliminary prospectus supplement dated September 13, 2011) with the SEC for the offering to which
this communication relates. Before you invest, you should read the prospectus in that registration
statement, the related preliminary prospectus supplement and other documents the issuer has filed
with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange to send you the
prospectus and preliminary prospectus supplement if you request it by calling Raymond James &
Associates, Inc. toll-free at 1-800-248-8863, Merrill Lynch, Pierce, Fenner & Smith Incorporated
toll-free atmailto: 1-800-294-1322 or Wells Fargo Securities, LLC toll-free at
1-800-326-5897.
Sch C-1
Exhibit A-1
FORM OF OPINION OF HUNTON & WILLIAMS LLP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
A-1-1
Exhibit A-2
FORM OF NEGATIVE ASSURANCE LETTER OF HUNTON & WILLIAMS LLP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
A-2-1
Exhibit A-3
FORM OF TAX OPINION OF HUNTON & WILLIAMS LLP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
A-3-1
Exhibit B
FORM OF OPINION OF VENABLE LLP
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
B-1