EXHIBIT 1.1
EDUCATION REALTY TRUST, INC.
(a Maryland corporation)
19,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
January 25, 2005
J.P. Morgan Securities Inc.
UBS Securities LLC
As Representatives of the several
Underwriters listed in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
c/o UBS Securities LLC
299 Park Avenue,
New York, New York 10171
Ladies and Gentlemen:
Education Realty Trust, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule 1
hereto (the "Underwriters"), for whom you are acting as representatives
(collectively, the "Representative"), an aggregate of 19,000,000 shares of
common stock, par value $0.01 per share, of the Company (the "Underwritten
Shares") and, at the election of the Underwriters, up to an additional 2,850,000
shares of common stock of the Company (the "Option Shares"). The Underwritten
Shares and the Option Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "Shares."
At the Closing Date (as hereinafter defined), the Company and Education
Realty Operating Partnership, LP, a Delaware limited partnership (the "Operating
Partnership"), will complete a series of transactions described in the
Prospectus (as hereinafter defined) under the captions "Prospectus
summary-Structure and formation of our Company," "Prospectus
summary-Consequences of this offering and the formation transactions" and
"Structure and formation of our Company" (such transactions, the "Formation
Transactions"). As part of the Formation Transactions, (i) the Company will
contribute the net proceeds from the public offering of the Shares to the
Operating Partnership in exchange for units of interest in the Operating
Partnership ("OP Units") and (ii) the Operating Partnership will issue OP Units
to the Company.
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-11 (File No. 333-119264)
including a prospectus, relating to the Shares. Such registration statement, as
amended at the time it becomes effective, including the information, if any,
deemed pursuant to Rule 430A under the Securities Act to be part of the
registration statement at the time of its effectiveness ("Rule 430
Information"), is referred to herein as the "Registration Statement;" and as
used herein, the term "Preliminary Prospectus" means each prospectus included in
such registration statement (and any amendments thereto) before it becomes
effective, any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430A Information, and
the term "Prospectus" means the prospectus in the form first used to confirm
sales of the Shares. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Registration Statement and the Prospectus.
2. Purchase of the Shares by the Underwriters.
(a) The Company agrees to issue and sell the Shares to
the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the Company
the respective number of Underwritten Shares set forth opposite such
Underwriter's name in Schedule 1 hereto at a price per share of $15.00
(the "Purchase Price") (representing a public offering price of $16.00
per share, less an underwriting discount of $1.00 per share).
In addition, the Company agrees to issue and sell the Option
Shares to the several Underwriters as provided in this Agreement, and
the Underwriters, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly,
from the Company the Option Shares at the Purchase Price.
If any Option Shares are to be purchased, the number of Option
Shares to be purchased by each Underwriter shall be the number of
Option Shares which bears the same ratio to the aggregate number of
Option Shares being purchased as the number of Underwritten Shares set
forth opposite the name of such Underwriter in Schedule 1 hereto (or
such number increased as set forth in Section 9 hereof) bears to the
aggregate number of Underwritten Shares being purchased from the
Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the Representative in
its sole discretion shall make.
The Underwriters may exercise the option to purchase the
Option Shares at any time in whole, or from time to time in part, on or
before the thirtieth (30th) day following the date of this Agreement,
by written notice from the Representative to the Company. Such notice
shall set forth the aggregate number of Option Shares as to which the
option is being exercised and the date and time when the Option Shares
are to be delivered and
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paid for which may be the same date and time as the Closing Date (as
hereinafter defined) but shall not be earlier than the Closing Date nor
later than the tenth full business day (as hereinafter defined) after
the date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 9 hereof). Any such notice
shall be given at least two (2) Business Days prior to the date and
time of delivery of such Option Shares specified therein.
(b) The Company understands that the Underwriters intend
to make a public offering of the Shares as soon after the effectiveness
of this Agreement as in the judgment of the Representative is
advisable, and initially to offer the Shares on the terms set forth in
the Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell Shares to or through any affiliate of
an Underwriter and that any such affiliate may offer and sell Shares
purchased by it to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer
in immediately available funds to the account specified by the Company
to the Representative in the case of the Underwritten Shares, at the
offices of Morris, Manning & Martin, LLP, 1600 Atlanta Financial
Center, 3343 Peachtree Road, N.E., Atlanta, Georgia 30326 at 10:00 A.M.
New York City time on January 31, 2005, or at such other time or place
on the same or such other date, not later than the fifth business day
thereafter, as the Representative and the Company may agree upon in
writing or, in the case of the Option Shares, on the date and at the
time and place specified by the Representative in the written notice of
the Underwriters' election to purchase such Option Shares. The time and
date of such payment for the Underwritten Shares is referred to herein
as the "Closing Date" and the time and date for such payment for the
Option Shares, if other than the Closing Date, are herein referred to
as the "Additional Closing Date."
Payment for the Shares to be purchased on the Closing Date or
the Additional Closing Date, as the case may be, shall be made against
delivery to the Representative for the respective accounts of the
several Underwriters of the Shares to be purchased on such date in
definitive form registered in such names and in such denominations as
the Representative shall request in writing not later than two full
business days prior to the Closing Date or the Additional Closing Date,
as the case may be, with any transfer taxes payable in connection with
the sale of the Shares duly paid by the Company. Upon request, the
certificates for the Shares will be made available for inspection and
packaging by the Representative at the office of J.P. Morgan Securities
Inc. (address set forth above) not later than 1:00 P.M., New York City
time, on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
3. Representations and Warranties. The Company and the Operating
Partnership, jointly and severally, represent and warrant to each Underwriter
that:
(a) Preliminary Prospectus. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, complied in all material respects with the Securities Act and
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
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provided that the Company makes no representation and warranty with
respect to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representative
expressly for use in any Preliminary Prospectus.
(b) Registration Statement and Prospectus. The
Registration Statement has been declared effective by the Commission.
No order suspending the effectiveness of the Registration Statement has
been issued by the Commission and no proceeding for that purpose has
been initiated or threatened by the Commission; as of the applicable
effective date of the Registration Statement and any amendment thereto,
the Registration Statement complied and will comply in all material
respects with the Securities Act, and did not and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the applicable filing date
of the Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may be,
the Prospectus will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for
use in the Registration Statement and the Prospectus and any amendment
or supplement thereto.
(c) Intentionally Omitted.
(d) Financial Statements. The financial statements and
the related notes thereto of the Company and its subsidiaries (which,
for all purposes of this Agreement, shall include the Operating
Partnership) included in the Registration Statement and the Prospectus
comply in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and present fairly
the financial position of the Company and its subsidiaries as of the
dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods covered
thereby, and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein;
the other financial information included in the Registration Statement
and the Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information shown
thereby; all disclosures contained in the Registration Statement or the
Prospectus regarding "non-GAAP financial measures" (as such term is
defined by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act, and Item 10 of Regulation S-K under
the Securities Act, to the extent applicable; and the pro forma
financial information and the related notes thereto included in the
Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and the assumptions underlying such
pro forma financial information are reasonable and are set forth in the
Registration Statement and the Prospectus.
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(e) No Material Adverse Change. Since the date of the
most recent financial statements of the Company included in the
Registration Statement and the Prospectus, (i) except for the
redemption by the Company to occur on the Closing Date following the
issuance of the Underwritten Shares of 100 shares of Common Stock held
by Paul O. Bower for $1,000, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the Company on any class of capital
stock, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial position, stockholders' equity,
results of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its subsidiaries
has entered into any transaction or agreement that is material to the
Company and its subsidiaries taken as a whole or incurred any liability
or obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) neither the Company
nor any of its subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each case
as otherwise disclosed in the Registration Statement and the Prospectus
as having occurred prior to the date thereof or to occur on the Closing
Date.
(f) Organization and Good Standing. The Company and each
of its subsidiaries have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions
of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary
to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in
the aggregate, have a material adverse effect on the business,
properties, management, financial position, stockholders' equity,
results of operations or prospects of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect"). The Company does not
own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to the
Registration Statement.
(g) Capitalization. The Company has an authorized
capitalization as set forth in the Prospectus under the heading
"Capitalization;" all the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are not subject to any pre-emptive or
similar rights; except as described in or expressly contemplated by the
Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock
of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options; the
capital stock of the Company conforms in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus; and all the outstanding shares of capital stock
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or other equity interests of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable except as otherwise described in the Prospectus, and are
owned directly or indirectly by the Company, free and clear of any
lien, charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party.
(h) Due Authorization. The Company and the Operating
Partnership each has full right, power and authority to execute and
deliver this Agreement and, as applicable, the agreements attached as
Exhibits 10.1, 10.2, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12,
10.13, 10.14, 10.15, 10.16, 10.17, 10.18, 10.19, 10.20 and 10.21 to the
Registration Statement and any other documents required to be executed
and delivered in connection with the Formation Transactions
(collectively, the "Transaction Documents") and to perform its
obligations hereunder and thereunder; and all action required to be
taken for the due and proper authorization, execution and delivery of
each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(i) Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Operating
Partnership.
(j) The Shares. The Shares to be issued and sold by the
Company hereunder have been duly authorized by the Company and, when
issued and delivered and paid for as provided herein, will be duly and
validly issued and will be fully paid and nonassessable and will
conform to the descriptions thereof in the Prospectus; and the issuance
of the Shares is not subject to any preemptive or similar rights.
(k) Transaction Documents. The Transaction Documents have
been duly authorized, by the Company and the Operating Partnership and,
when duly executed and delivered in accordance with its terms by each
of the parties thereto, will constitute valid and legally binding
agreements of the Company (to the extent a party thereto) and the
Operating Partnership (to the extent a party thereto), enforceable in
accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general equitable
principles, and except to the extent that the indemnification and
contribution provisions may be limited by U.S. federal or state
securities laws and public policy considerations in respect thereof.
(l) Descriptions of the Transaction Documents. Each
Transaction Document conforms in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
(m) No Violation or Default. Neither the Company nor any
of its subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no event has
occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; or (iii)
in violation of any law
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or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case
of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse
Effect.
(n) No Conflicts. The execution, delivery and performance
by the Company and the Operating Partnership (where applicable) of each
of the Transaction Documents, the issuance and sale of the Shares and
the consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of its subsidiaries or
(iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or
regulatory authority; except, in the case of clause (i) above, for any
such conflict, breach or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(o) No Consents Required. No consent, approval,
authorization, order, registration or qualification of or with any
court or arbitrator or governmental or regulatory authority is required
for the execution, delivery and performance by the Company and the
Operating Partnership of each of the Transaction Documents, the
issuance and sale of the Shares and the consummation of the
transactions contemplated by the Transaction Documents, except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws in connection
with the purchase and distribution of the Shares by the Underwriters.
(p) Legal Proceedings. Except as described in the
Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which any
property of the Company or any of its subsidiaries is or may be the
subject that, individually or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, could have a Material
Adverse Effect or materially and adversely affect the ability of the
Company to perform its obligations under the Transaction Documents; to
the best knowledge of the Company and the Operating Partnership, no
such investigations, actions, suits or proceedings are threatened, or
contemplated by any governmental or regulatory authority or threatened
by others; and (i) there are no current or pending legal, governmental
or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Prospectus that are not so
described and (ii) there are no statutes, regulations or contracts or
other documents that are required under the Securities Act to be filed
as exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus that are not so filed or
described.
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(q) Independent Accountants. Deloitte & Touche LLP, who
has audited certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm with
respect to the Company and its subsidiaries as required by the
Securities Act.
(r) Title to Real and Personal Property. Upon
consummation of the Formation Transactions, the Company and its
subsidiaries will have good and marketable title in fee simple to, or a
valid leasehold interest in, all real property described in the
Prospectus as owned by them (the "Real Property"), and good and
marketable title to all personal property owned by them (or to be owned
upon the consummation of the Formation Transactions) that are material
to the business of the Company, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and
any real property, buildings and equipment held under lease by the
Company and its subsidiaries and described in the Prospectus are held
by them under valid, subsisting and enforceable leases (such leases,
the "Company Leases") with such exceptions as are not material and do
not materially interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries.
(s) Title Insurance. Upon completion of the Formation
Transactions, the Company or its subsidiaries will have either (i) an
owner's or leasehold title insurance policy, from a nationally
recognized title insurance company licensed to issue such policy, on
any Real Property, by the Company or its subsidiaries, that insures the
fee or leasehold interest, as the case may be, which policies include
only commercially reasonable exceptions, and with coverages in amounts
at least equal to amounts that are generally deemed in the Company's
industry to be commercially reasonable in the markets where the
Company's properties are located, or (ii) one or more lender's title
insurance policies insuring the lien of the mortgages encumbering the
Real Property with coverages, in the aggregate, equal to the maximum
aggregate principal amount of indebtedness incurred by the Company or
its subsidiaries and secured by the Real Property.
(t) Insurance Coverage. The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; to
the knowledge of the Company and its subsidiaries all policies of
insurance insuring the Company and its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects;
neither the Company nor any of its subsidiaries has received notice
from any insurer or agent of such insurer that capital improvements or
other expenditures are required or necessary to be made in order to
continue such coverage; and neither the Company nor any of its
subsidiaries has any reason to believe that it shall not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that could not reasonably be
expected, individually or in aggregate, to have a
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Material Adverse Effect, except as set forth in the Prospectus.
(u) Title to Intellectual Property. The Company and its
subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses;
and the conduct of their respective businesses will not conflict in any
material respect with any such rights of others, and the Company and
its subsidiaries have not received any notice of any claim of
infringement or conflict with any such rights of others.
(v) No Undisclosed Relationships. No relationship, direct
or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act to
be described in the Registration Statement and the Prospectus and that
is not so described.
(w) Investment Company Act. The Company is not and, after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus,
will not be required to register as an "investment company" or an
entity "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, "Investment
Company Act").
(x) Taxes. The Company and its subsidiaries have paid all
federal, state, local and foreign taxes and filed all tax returns
required to be paid or filed through the date hereof; and except as
otherwise disclosed in the Prospectus, there is no tax deficiency that
has been, or could reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective
properties or assets.
(y) Licenses and Permits. The Company and its
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings
with, the appropriate federal, state, local or foreign governmental or
regulatory authorities that are necessary for the ownership or lease of
their respective properties or the conduct of their respective
businesses as described in the Registration Statement and the
Prospectus, except where the failure to possess or make the same would
not, individually or in the aggregate, have a Material Adverse Effect;
and except as described in the Prospectus, neither the Company nor any
of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or authorization
or has any reason to believe that any such license, certificate, permit
or authorization will not be renewed in the ordinary course.
(z) No Labor Disputes. No labor disturbance by or dispute
with employees of the Company or any of its subsidiaries exists or, to
the best knowledge of the Company, is contemplated or threatened.
(aa) Compliance With Environmental Laws. Except to an
extent that would not, individually or in the aggregate, reasonably be
expected to result in a Material
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Adverse Effect: (i) neither the Company nor any of its subsidiaries
nor, to the knowledge of the Company, any other owners of the Real
Property at any time or any other party has at any time, handled,
stored, treated, transported, manufactured, spilled, leaked, or
discharged, dumped, transferred or otherwise disposed of or dealt with,
Hazardous Materials (as hereinafter defined) on, to or from any Real
Property, other than by any such action taken in material compliance
with all applicable Environmental Statutes (as hereinafter defined) or
by the Company, any of its subsidiaries or any other party in
connection with the ordinary use of residential, retail or commercial
properties owned by the Company or any subsidiary; (ii) the Company and
its subsidiaries do not intend to use the Real Property or any
subsequently acquired properties for the purpose of handling, storing,
treating, transporting, manufacturing, spilling, leaking, discharging,
dumping, transferring or otherwise disposing of or dealing with
Hazardous Materials other than by any such action taken in compliance
with all applicable Environmental Statues or by the Company, any of its
subsidiaries or any other party in connection with the ordinary use of
residential, retail or commercial properties owned by the Company or
any subsidiary; (iii) the Company and the Operating Partnership do not
know of any seepage, leak, discharge, release, emission, spill, or
dumping of Hazardous Materials from the Real Property into waters on or
adjacent to the Real Property or from the Real Property onto any real
property owned or occupied by any other party, or onto lands from which
Hazardous Materials might seep, flow or drain into such waters other
than in substantial compliance with Environmental Statutes; (iv)
neither the Company nor the Operating Partnership has received any
notice of, and has knowledge of, any occurrence or circumstance which,
with notice or passage of time or both, would give rise to a claim
under or pursuant to any U.S. federal, state or local environmental
statute or regulation or under common law, pertaining to Hazardous
Materials on or originating from any of the Real Property or arising
out of the conduct of the Company or any of its subsidiaries, including
without limitation a claim under or pursuant to any Environmental
Statute (as hereinafter defined); and (v) neither the Real Property is
included nor, to the Company's or the Operating Partnership's
knowledge, is proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as hereinafter defined) by United States
Environmental Protection Agency (the "EPA") or, to the Company's or the
Operating Partnership's knowledge, proposed for inclusion on any
similar list or inventory issued pursuant to any other Environmental
Statute or issued by any other Governmental Authority.
As used herein, "Hazardous Materials" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, or related materials,
asbestos or any hazardous material as defined by any U.S. federal,
state or local environmental law, ordinance, rule or regulation
including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Sections
9601-9675 ("CERCLA"), the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Sections 1801-1819, the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Sections 6901-6992K, the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections
11001-11050, the Toxic Substances Control Act, 15 U.S.C. Sections
2601-2671, the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections
7401-7642, the Clean Water Act (Federal Water Pollution Control Act),
33 U.S.C. Sections 1251-1387, the Safe Drinking Water Act, 42 U.S.C.
Sections 300f-330j-26, and the Occupational Safety and Health Act, 29
U.S.C.
10
Sections 651-678, as any of the above statutes may be amended from time
to time, and in the regulations promulgated pursuant to each of the
foregoing (individually, an "Environmental Statute") or by any
Governmental Authority.
(bb) Compliance With ERISA. Each employee benefit plan,
within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that is maintained,
administered or contributed to by the Company or any of its affiliates
for employees or former employees of the Company and its affiliates has
been maintained in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but
not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the "Code"); no prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code, has occurred with respect to
any such plan excluding transactions effected pursuant to a statutory
or administrative exemption; and for each such plan that is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA,
no "accumulated funding deficiency" as defined in Section 412 of the
Code has been incurred, whether or not waived, and the fair market
value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all
benefits accrued under such plan determined using reasonable actuarial
assumptions.
(cc) Compliance with ADA and FHA. The Company and its
subsidiaries and each Real Property are currently in compliance with
all presently applicable provisions of the Americans with Disabilities
Act, as amended, and the Fair Housing Act, as amended, except for any
such non-compliance that will not, individually or in aggregate, have a
Material Adverse Effect.
(dd) Internal Control over Financial Reporting. The
Company and its subsidiaries maintain a system of internal control over
financial reporting sufficient to provide reasonable assurance that
financial reporting is reliable and financial statements for external
purposes are prepared in accordance with GAAP and includes policies and
procedures that (i) pertain to the maintenance of records that in
reasonable detail accurately and fairly reflect the transactions and
dispositions of the assets of the Company; (ii) provide reasonable
assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP, and that
receipts and expenditures of the Company are being made only in
accordance with applicable law and the authorizations of management and
directors of the Company; and (iii) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the Company's assets that could have a material
effect on the financial statements.
(ee) No Unlawful Payments. Neither the Company nor any of
its subsidiaries nor, to the best knowledge of the Company, any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices Act
of 1977; or (iv) made any bribe, rebate, payoff, influence payment,
11
kickback or other unlawful payment.
(ff) No Restrictions on Subsidiaries. No subsidiary of the
Company is currently prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary's properties or assets to the
Company or any other subsidiary of the Company.
(gg) No Broker's Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a
valid claim against the Company or any of its subsidiaries or any
Underwriter for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Shares.
(hh) No Registration Rights. Except as described in the
Prospectus, no person has the right to require the Company or any of
its subsidiaries to register any securities for sale under the
Securities Act by reason of the filing of the Registration Statement
with the Commission or the issuance and sale of the Shares.
(ii) No Stabilization. The Company and the Operating
Partnership have not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Shares.
(jj) Business With Cuba. The Company and its subsidiaries
have complied with all provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida) relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
(kk) Margin Rules. Neither the issuance, sale and delivery
of the Shares nor the application of the proceeds thereof by the
Company and the Operating Partnership as described in the Registration
Statement and the Prospectus will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other
regulation of such Board of Governors.
(ll) Intentionally Omitted.
(mm) Statistical and Market Data. Nothing has come to the
attention of the Company or the Operating Partnership that has caused
the Company or the Operating Partnership to believe that the
statistical and market-related data included in the Registration
Statement and the Prospectus is not based on or derived from sources
that are reliable and accurate in all material respects.
(nn) Sarbanes-Oxley Act. Upon the Company's registration
under Section 12(b) of the Exchange Act, the Company and each of the
Company's directors and officers, in their capacities as such, shall be
in full compliance with all applicable provisions of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "Sarbanes-Oxley Act"), including Section 402 related to
12
loans and Sections 302 and 906 related to certifications.
(oo) REIT Election. The Company will properly and timely
elect to be taxed as a real estate investment trust (a "REIT") under
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code")
commencing with the taxable year ending December 31, 2005 and the
Company will be organized and operated in conformity with the
requirements for qualification as a REIT under the Code and the
proposed method of operation of the Company and its subsidiaries will
enable the Company to meet the requirements for qualification and
taxation as a REIT under the Code; the Operating Partnership is treated
as a partnership for U.S. federal income tax purposes and not as a
corporation or association taxable as a corporation; and the Company
intends to continue to qualify as a REIT under the Code for all
subsequent years, and the Company does not know of any event that could
reasonably be expected to cause the Company to fail to qualify as a
REIT under the Code at any time.
(pp) Transactions Involving Operating Partnership Units.
The issuance of the OP Units and the University Towers Operating
Partnership Units (the "UT OP Units"), described in the Prospectus have
been duly authorized and upon issuance, in accordance with the
Operating Agreements of the Operating Partnership and the University
Towers Operating Agreement, the OP Units and UT OP Units described in
the Prospectus will be validly issued; and upon completion of the
offering of the Shares and the Formation Transactions, the Company will
be the holder of OP Units and UT OP Units in the amount and percentage
described in the Prospectus and the Company will hold the sole managing
member interest in the Operating Partnership. All OP Units and UT OP
Units issued to persons other than the Company or its subsidiaries
shall have been duly offered and issued in transactions exempt from
registration under the Securities Act.
(qq) New York Stock Exchange Listing. The Shares have been
approved for listing, upon official notice of issuance, on the New York
Stock Exchange (the "NYSE"). The Company satisfies all requirements for
continued listing of the Shares on the NYSE.
4. Further Agreements of the Company. The Company covenants and
agrees with each Underwriter that:
(a) Effectiveness of the Registration Statement. The
Company will use its reasonable best efforts to cause the Registration
Statement to become effective at the earliest possible time and, if
required, will file the final Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A under the
Securities Act and to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; and the Company will furnish copies of
the Prospectus to the Underwriters in New York City prior to 10:00
A.M., New York City time, on the business day next succeeding the date
of this Agreement in such quantities as the Representative may
reasonably request.
(b) Delivery of Copies. The Company will deliver, without
charge, (i) to the
13
Representative, six signed copies of the Registration Statement as
originally filed and each amendment thereto, in each case including all
exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of
the Registration Statement as originally filed and each amendment
thereto (without exhibits) and (B) during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) as
the Representative may reasonably request. As used herein, the term
"Prospectus Delivery Period" means such period of time after the first
date of the public offering of the Shares as in the opinion of counsel
for the Underwriters a prospectus relating to the Shares is required by
law to be delivered in connection with sales of the Shares by any
Underwriter or dealer.
(c) Amendments or Supplements. Before filing any
amendment or supplement to the Registration Statement or the
Prospectus, whether before or after the time that the Registration
Statement becomes effective, the Company will furnish to the
Representative and counsel for the Underwriters a copy of the proposed
amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Representative reasonably objects.
(d) Notice to the Representative. The Company will advise
the Representative promptly, and confirm such advice in writing, (i)
when the Registration Statement has become effective; (ii) when any
amendment to the Registration Statement has been filed or becomes
effective; (iii) when any supplement to the Prospectus or any amendment
to the Prospectus has been filed; (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request
by the Commission for any additional information; (v) of the issuance
by the Commission of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose; (vi) of the occurrence
of any event within the Prospectus Delivery Period as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser,
not misleading; and (vii) of the receipt by the Company of any notice
with respect to any suspension of the qualification of the Shares for
offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and the Company will use its best
efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification of the Shares and, if any such order is issued,
will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the
Prospectus Delivery Period (i) any event shall occur or condition shall
exist as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is
14
delivered to a purchaser, not misleading or (ii) it is necessary to
amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission and furnish to
the Underwriters and to such dealers as the Representative may
designate, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law.
(f) Blue Sky Compliance. The Company will qualify the
Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and will
continue such qualifications in effect so long as required for
distribution of the Shares; provided that the Company shall not be
required to (i) qualify as a foreign corporation or other entity or as
a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to
service of process in any such jurisdiction or (iii) subject itself to
taxation in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally
available to its security holders and the Representative as soon as
practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after
the "effective date" (as defined in Rule 158) of the Registration
Statement.
(h) Clear Market. For a period of 180 days after the date
of the initial public offering of the Shares (the "Lock-Up Period"),
the Company will not (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Stock or any securities convertible into or
exercisable or exchangeable for Stock or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by
delivery of Stock or such other securities, in cash or otherwise,
without the prior written consent of the Representative, other than the
Shares to be sold hereunder, any shares of Stock of the Company issued
upon the exercise of options granted under existing employee stock
option plans, and any securities issued in connection with any
acquisition of property or a controlling interest in a business,
provided that such securities are subject to the Lock-Up Period.
Notwithstanding the foregoing, in the event that either (x) during the
last 15 calendar days plus 3 business days before the Lock-Up Period
expires, the Company issues an earnings release (or material news or a
material event relating to the Company occurs) or (y) prior to the
expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last
day of the Lock-Up Period, the restrictions imposed by this
subparagraph shall continue to apply until the expiration of the date
that is 15 calendar days plus 3 business days after the date of the
earnings release or the material news or material event occurs.
15
(i) Use of Proceeds. The Company will apply, and will
cause the Operating Partnership to apply, the net proceeds from the
sale of the Shares as described in the Prospectus under the heading
"Use of Proceeds."
(j) No Stabilization. The Company will not take, directly
or indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of the
price of the Shares.
(k) Exchange Listing. The Company will use its best
efforts to list, subject to notice of issuance, the Shares on the NYSE.
(l) Reports. So long as the Shares are outstanding, the
Company will furnish to the Representative, as soon as they are
available, copies of all reports or other communications (financial or
other) furnished to holders of the Shares, and copies of any reports
and financial statements furnished to or filed with the Commission or
any national securities exchange or automatic quotation system.
(m) Filings. The Company will file with the Commission
such reports as may be required by Rule 463 under the Securities Act.
5. Conditions of Underwriters' Obligations. The obligation of
each Underwriter to purchase the Underwritten Shares on the Closing Date or the
Option Shares on the Additional Closing Date, as the case may be as provided
herein is subject to the performance by the Company and Operating Partnership of
their covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. The
Registration Statement (or if a post-effective amendment thereto is
required to be filed under the Securities Act, such post-effective
amendment) shall have become effective, and the Representative shall
have received notice thereof, not later than 5:00 P.M., New York City
time, on the date hereof; no order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such
purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been timely filed with the Commission under the
Securities Act and in accordance with Section 4(a) hereof; and all
requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations
and warranties of the Company contained herein shall be true and
correct on the date hereof and on and as of the Closing Date or the
Additional Closing Date, as the case may be; and the statements of the
Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date
or the Additional Closing Date, as the case may be.
(c) Intentionally Omitted
(d) No Material Adverse Change. Subsequent to the
execution and delivery of this Agreement, no event or condition of a
type described in Section 3(e) hereof shall have occurred or shall
exist, which event or condition is not described in the Prospectus
16
(excluding any amendment or supplement thereto) and the effect of which
in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the
Shares on the Closing Date or the Additional Closing Date, as the case
may be, on the terms and in the manner contemplated by this Agreement
and the Prospectus.
(e) Officer's Certificate. The Representative shall have
received on and as of the Closing Date or the Additional Closing Date,
as the case may be, a certificate of the chief financial officer or
chief accounting officer of the Company and one additional senior
executive officer of the Company who is satisfactory to the
Representative (i) confirming that such officers have carefully
reviewed the Registration Statement and the Prospectus and, to the best
knowledge of such officers, the representation set forth in Section
3(b) hereof is true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are
true and correct and that the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date and (iii) to the effect set
forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on
the Closing Date or the Additional Closing Date, as the case may be,
Deloitte & Touche LLP shall have furnished to the Representative, at
the request of the Company, letters, dated the respective dates of
delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided, that the letter
delivered on the Closing Date or the Additional Closing Date, as the
case may be shall use a "cut-off" date no more than three business days
prior to such Closing Date or such Additional Closing Date, as the case
may be.
(g) Opinion of Counsel for the Company. Venable LLP,
special Maryland counsel for the Company, shall have furnished to the
Representative, at the request of the Company, their written opinion,
dated the Closing Date or the Additional Closing Date, as the case may
be, and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex A
hereto. Morris, Manning & Martin, LLP counsel for the Company shall
have furnished to you their written opinion, dated the Closing Date or
the Additional Closing Date, as the case may be, to the effect set
forth in Annex B hereto. Morris, Manning & Martin, LLP shall have
furnished to you, their written opinion, dated the Closing Date or the
Additional Closing Date, as the case may be, with respect to federal
income tax matters to the effect set forth in Annex C hereto.
(h) Opinion of Counsel for the Underwriters. The
Representative shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, an opinion of Bass, Berry
& Sims PLC, counsel for the Underwriters, with respect to such matters
as the Representative may reasonably request, and such counsel shall
have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
17
(i) No Legal Impediment to Issuance. No action shall have
been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date
or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Shares; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as
of the Closing Date or the Additional Closing Date, as the case may be,
prevent the issuance or sale of the Shares.
(j) Good Standing. The Representative shall have received
on and as of the Closing Date or the Additional Closing Date, as the
case may be, satisfactory evidence of the good standing of the Company
and its subsidiaries in their respective jurisdictions of organization
and their good standing as foreign entities in such other jurisdictions
as the Representative may reasonably request, in each case in writing
or any standard form of telecommunication from the appropriate
Governmental Authorities of such jurisdictions.
(k) NYSE Listing. The Shares to be delivered on the
Closing Date or Additional Closing Date, as the case may be, shall have
been approved for listing on the NYSE, subject to official notice of
issuance.
(l) Lock-up Agreements. The "lock-up" agreements, each
substantially in the form of Annex D hereto, between you and certain
shareholders, officers and directors of the Company relating to sales
and certain other dispositions of shares of Stock or certain other
securities, delivered to you on or before the date hereof, shall be
full force and effect on the Closing Date or Additional Closing Date,
as the case may be.
(m) Advisory Fee. Pursuant to a letter agreement, dated
January 24, 2005 (the "Engagement Letter"), among the Company and the
Operating Partnership on the one hand and J.P. Morgan Securities Inc.,
UBS Securities LLC and Morgan Keegan & Company, Inc. on the other (the
"Advisors"), the Company shall pay to the Advisors the financial
advisory fee required under such agreement pursuant to the terms and
conditions set forth in such Engagement Letter.
(n) Additional Documents. On or prior to the Closing Date
or the Additional Closing Date, as the case may be, the Company shall
have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company and
Operating Partnership, jointly and severally, agree to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers
and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other
expenses incurred in connection with
18
any suit, action or proceeding or any claim asserted, as such fees and
expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
(or any amendment or supplement thereto) or any Preliminary Prospectus,
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use therein, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
subsection (b) below.
(b) Indemnification of the Company and Operating
Partnership. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement, the Operating Partnership and
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, it being understood and agreed upon that the only such
information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter:
the concession and reallowance figures appearing under the caption
"Underwriting -- Underwriting discount and expenses" and the
information contained in the Prospectus under the caption
"Underwriting--Stabilization, short positions and penalty bids."
(c) Notice and Procedures. If any suit, action,
proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such person (the "Indemnified Person")
shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further,
that the failure to notify the Indemnifying Person shall not relieve it
from any liability that it may have to an Indemnified Person otherwise
than under this Section 6. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses reasonably
incurred of such counsel related to such
19
proceeding, as such expenses are incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be
legal defenses available to it that are different from or in addition
to those available to the Indemnifying Person; or (iv) the named
parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses reasonably incurred shall
be paid or reimbursed as such expenses are incurred. Any such separate
firm for any Underwriter, its affiliates, directors and officers and
any control persons of such Underwriter shall be designated in writing
by J.P. Morgan Securities Inc., UBS Securities LLC and any such
separate firm for the Company, its directors, its officers who signed
the Registration Statement, the Operating Partnership and any control
persons of the Company shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have
been a party and indemnification could have been sought hereunder by
such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability
or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Operating Partnership on the one hand
20
and the Underwriters on the other from the offering of the Shares 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) but also the
relative fault of the Company and Operating Partnership on the one hand
and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
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 shall be deemed to be in the
same respective proportions as the net proceeds (before deducting
expenses) received by the Company and the Operating Partnership from
the sale of the Shares and the total underwriting discounts and
commissions received by the Underwriters in connection therewith, in
each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Shares. The relative fault
of the Company and the Operating Partnership on the one hand and the
Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company and 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.
(e) Limitation on Liability. The Company, the Operating
Partnership and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 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 that does
not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Person in connection with any such action
or claim. Notwithstanding the provisions of this Section 6, in no event
shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the offering of the Shares
exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 6 are
several in proportion to their respective purchase obligations
hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in
this Section 6 are not exclusive and shall not limit any rights or
remedies, which may otherwise be available to any Indemnified Person at
law or in equity.
7. Effectiveness of Agreement. This Agreement shall become
effective upon the later of (i) the execution and delivery hereof by the parties
hereto and (ii) receipt by the Company and the Representative of notice of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment thereto).
21
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date or, in
the case of the Option Shares, prior to the Additional Closing Date (i) trading
generally shall have been suspended or materially limited on or by any of the
NYSE, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representative, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Shares on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated by this
Agreement and the Prospectus.
9. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to
purchase the Shares that it has agreed to purchase hereunder on such
date, the non-defaulting Underwriters may in their discretion arrange
for the purchase of such Shares by other persons satisfactory to the
Company on the terms contained in this Agreement. If, within 36 hours
after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the
Company shall be entitled to a further period of 36 hours within which
to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Shares on such terms. If other persons
become obligated or agree to purchase the Shares of a defaulting
Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date or the Additional Closing Date, as the case
may be, for up to five full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus that effects any such
changes. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context otherwise
requires, any person not listed in Schedule 1 hereto that, pursuant to
this Section 9, purchases Shares that a defaulting Underwriter agreed
but failed to purchase.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the
case may be does not exceed one-eleventh of the aggregate number of
Shares to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number
of Shares that such Underwriter agreed to purchase hereunder on such
date plus such Underwriter's pro rata share (based on the number of
Shares that such Underwriter agreed to purchase on such date) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
22
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the
case may be, exceeds one-eleventh of the aggregate amount of Shares to
be purchased on such date, or if the Company shall not exercise the
right described in paragraph (b) above, then this Agreement or, with
respect to any Additional Closing Date, the obligation of the
Underwriters to purchase Shares on the Additional Closing Date, as the
case may be, shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of the
Company, except that the Company will continue to be liable for the
payment of expenses as set forth in Section 10 hereof and except that
the provisions of Section 6 hereof shall not terminate and shall remain
in effect.
(d) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or any
non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses.
(a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation,
(i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Shares and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii)
the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Company's counsel and
independent accountants; (v) the fees and expenses incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Shares under the laws of such
jurisdictions as the Representative may designate and the preparation,
printing and distribution of a Blue Sky Memorandum (including the
filing fees and reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vi) the
cost of preparing stock certificates; (vii) the costs and charges of
any transfer agent and any registrar; (viii) all expenses and
application fees incurred in connection with any filing with, and
clearance of the offering by, the National Association of Securities
Dealers, Inc.; (ix) all expenses incurred by the Company in connection
with any "road show" presentation to potential investors; and (x) all
expenses and application fees related to the listing of the Shares on
the NYSE.
(b) If (i) this Agreement is terminated pursuant to
Section 8, (ii) the Company for any reason fails to tender the Shares
for delivery to the Underwriters or (iii) the Underwriters decline to
purchase the Shares for any reason permitted under this Agreement, the
Company agrees to reimburse the Underwriters for all out-of-pocket
costs and expenses (including the fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
23
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons
referred to in Section 6 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Operating
Partnership and the Underwriters contained in this Agreement or made by or on
behalf of the Company, the Operating Partnership or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company, the Operating Partnership or the
Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a)
except where otherwise expressly provided, the term "affiliate" has the meaning
set forth in Rule 405 under the Securities Act; (b) the term "business day"
means any day other than a day on which banks are permitted or required to be
closed in New York City; and (c) the term "subsidiary" has the meaning set forth
in Rule 405 under the Securities Act; and (d) the term "significant subsidiary"
has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
14. Miscellaneous.
(a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by J.P. Morgan Securities Inc. and
UBS Securities LLC on behalf of the Underwriters, and any such action
taken by J.P. Morgan Securities Inc. and UBS Securities LLC shall be
binding upon the Underwriters.
(b) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representative c/o J.P. Morgan Securities Inc., 277 Park Avenue, New
York, New York 10172 (fax: 212-622-8358); Attention: Henry K. Wilson
and in c/o UBS Securities LLC, 299 Park Avenue, New York, New York
10171-0026 (fax: 212-622-8358), Attention: Syndicate Department.
Notices to the Company and the Operating Partnership shall be given to
it at 530 Oak Court Drive, Suite 300, Memphis, Tennessee 38117 (fax:
901-259-2594); Attention: Paul O. Bower, with a copy to Morris, Manning
& Martin, LLP, 3343 Peachtree Road, Suite 1600, Atlanta, Georgia 30064,
Attention: Rosemarie A. Thurston, Esq. (fax: 404-365-9532).
(c) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(d) Jurisdiction. Except as set forth below, no claim may
be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New
York or in the United States District Court for the Southern District
of New York, which courts shall have exclusive jurisdiction over the
24
adjudication of such matters, and the Company and the Operating
Partnership consent to the jurisdiction of such courts and personal
service with respect thereto. The Company and the Operating Partnership
hereby consent to personal jurisdiction, service and venue in any court
in which any claim arising out of or in any way relating to this
Agreement is brought by any third party against the Underwriters or any
Indemnified Party. Each of the Underwriters and the Company and the
Operating Partnership (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) waives
all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out
of or relating to this Agreement. The Company and the Operating
Partnership agree that a final judgment in any such action, proceeding
or counterclaim brought in any such court shall be conclusive and
binding upon the Company and/or the Operating Partnership, as the case
may be, and may be enforced in any other courts to the jurisdiction of
which the Company and/or the Operating Partnership is or may be
subject, by suit upon such judgment.
(e) Counterparts. This Agreement may be signed in
counterparts (which may include counterparts delivered by any standard
form of telecommunication), each of which shall be an original and all
of which together shall constitute one and the same instrument.
(f) Amendments or Waivers. No amendment or waiver of any
provision of this Agreement, nor any consent or approval to any
departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(g) Headings. The headings herein are included for
convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
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Very truly yours,
EDUCATION REALTY TRUST, INC.
By:/s/ Paul O. Bower
------------------------------
Name: Paul O. Bower
Title: President
EDUCATION REALTY OPERATING PARTNERSHIP, LP
By:/s/ Paul O. Bower
-------------------------------
Name: Paul O. Bower
Title: President of Education Realty
OP GP, Inc., Its General Partner
Accepted: January 25, 2005
J.P. MORGAN SECURITIES INC.
UBS SECURITIES LLC
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
J.P. MORGAN SECURITIES INC.
By: /s/ Arnold Evans
-------------------------
Title: Vice President
UBS SECURITIES LLC
By: /s/ John C. Brady
-------------------------
Title: Managing Director
By: /s/ Anthony Rokovich
-------------------------
Title: Director
26
SCHEDULE 1
NUMBER OF
NAME OF UNDERWRITER UNDERWRITTEN SHARES
- ------------------- -------------------
J.P. Morgan Securities Inc. 6,080,000
UBS Securities LLC 6,080,000
Morgan Keegan & Company, Inc. 3,800,000
KeyBanc Capital Markets, a division of McDonald Investments Inc. 1,140,000
Legg Mason Wood Walker, Incorporated 1,140,000
Robert W. Baird & Co. Incorporated 760,000
- ----------------------------------------------------------------- ----------
TOTAL 19,000,000
27