Maryland
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001-35568
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20-4738467
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Delaware
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333-190916
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20-4738347
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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16435 N. Scottsdale Road, Suite 320
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Scottsdale, Arizona
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85254
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(Address of principal executive offices)
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(Zip Code)
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o
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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o
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Healthcare Trust of America, Inc.
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Emerging growth company
o
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Healthcare Trust of America Holdings, LP
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Emerging growth company
o
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Healthcare Trust of America, Inc.
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o
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Healthcare Trust of America Holdings, LP
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o
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Item 1.01
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Entry into a Material Definitive Agreement.
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Item 9.01
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Financial Statements and Exhibits.
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1.1
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1.2
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1.3
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1.4
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1.5
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1.6
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1.7
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1.8
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1.9
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1.10
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1.11
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1.12
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5.1
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23.1
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Healthcare Trust of America, Inc.
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Date: December 28, 2018
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By:
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/s/ Scott D. Peters
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Name: Scott D. Peters
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Title: Chief Executive Officer, President and Chairman
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Healthcare Trust of America Holdings, LP
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By:
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Healthcare Trust of America, Inc.,
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its General Partner
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Date: December 28, 2018
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By:
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/s/ Scott D. Peters
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Name: Scott D. Peters
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Title: Chief Executive Officer, President and Chairman
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SECTION 1.
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DEFINITIONS 1
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SECTION 2.
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DESCRIPTION OF SHARES. 4
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SECTION 3.
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PLACEMENT NOTICES. 6
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SECTION 4.
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EXECUTION OF PLACEMENTS BY THE SALES AGENT AND THE FORWARD SELLER. 8
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SECTION 5.
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SUSPENSION OF OFFERINGS. 9
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SECTION 6.
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REPRESENTATIONS AND WARRANTIES. 10
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SECTION 7.
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DELIVERY TO THE SALES AGENT; SETTLEMENT. 30
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SECTION 8.
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COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. 32
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SECTION 9.
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PAYMENT OF EXPENSES. 40
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SECTION 10.
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CONDITIONS OF THE SALES AGENT’S, FORWARD SELLER’S AND FORWARD PURCHASER’S OBLIGATIONS. 41
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SECTION 11.
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INDEMNIFICATION. 43
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SECTION 12.
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REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. 47
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SECTION 13.
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TERMINATION OF AGREEMENT. 47
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SECTION 14.
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NOTICES. 48
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SECTION 15.
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RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES. 49
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SECTION 16.
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PARTIES. 50
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SECTION 17.
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ADJUSTMENTS FOR STOCK SPLITS. 50
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SECTION 18.
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GOVERNING LAW AND TIME. 50
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SECTION 19.
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EFFECT OF HEADINGS. 50
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SECTION 20.
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PERMITTED FREE WRITING PROSPECTUSES. 50
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SECTION 21.
|
ABSENCE OF A FIDUCIARY RELATIONSHIP. 51
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|
ii
|
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
$[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
$[___]]
|
The Sales Agent
Stephanie Little
Email: stephanie.y.little@jpmorgan.com
Tel: (312) 732-3229
|
Healthcare Trust of America, Inc.
Scott D. Peters
Tel: (480) 998-3478
Email: scottpeters@htareit.com
Robert A. Milligan
Tel: (480) 998-3478
Email: robertmilligan@htareit.com
|
The Forward Seller and the Forward Purchaser
Stephanie Little
Email: stephanie.y.little@jpmorgan.com
Tel: (312) 732-3229
|
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Operating Partnership has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
SECTION 1.
|
DEFINITIONS 1
|
SECTION 2.
|
DESCRIPTION OF SHARES. 3
|
SECTION 3.
|
PLACEMENT NOTICES. 5
|
SECTION 4.
|
EXECUTION OF PLACEMENTS BY THE SALES AGENT AND THE FORWARD SELLER. 7
|
SECTION 5.
|
SUSPENSION OF OFFERINGS. 9
|
SECTION 6.
|
REPRESENTATIONS AND WARRANTIES. 9
|
SECTION 7.
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DELIVERY TO THE SALES AGENT; SETTLEMENT. 29
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SECTION 8.
|
COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. 32
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SECTION 9.
|
PAYMENT OF EXPENSES. 39
|
SECTION 10.
|
CONDITIONS OF THE SALES AGENT’S, FORWARD SELLER’S AND FORWARD PURCHASER’S OBLIGATIONS. 40
|
SECTION 11.
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INDEMNIFICATION. 43
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SECTION 12.
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REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. 46
|
SECTION 13.
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TERMINATION OF AGREEMENT. 46
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SECTION 14.
|
NOTICES. 48
|
SECTION 15.
|
PARTIES. 49
|
SECTION 16.
|
ADJUSTMENTS FOR STOCK SPLITS. 49
|
SECTION 17.
|
GOVERNING LAW AND TIME. 49
|
SECTION 18.
|
EFFECT OF HEADINGS. 49
|
SECTION 19.
|
PERMITTED FREE WRITING PROSPECTUSES. 49
|
SECTION 20.
|
ABSENCE OF A FIDUCIARY RELATIONSHIP. 50
|
|
ii
|
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
$[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
$[___]]
|
The Sales Agent
Nick Stamou
Tel: (416) 552-7809
Email: nick.stamou@bmo.com
John Malafatopoulos
Tel: (212) 702-1892
Email: john.malafatopoulos@bmo.com
|
Healthcare Trust of America, Inc.
Scott D. Peters
Tel: (480) 998-3478
Email: scottpeters@htareit.com
Robert A. Milligan
Tel: (480) 998-3478
Email: robertmilligan@htareit.com
|
The Forward Seller and the Forward Purchaser
Each of the individuals listed under The Sales Agent above and:
Andrew Henderson
Tel: (416) 552-4177
Email: andrew.henderson@bmo.com
|
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Operating Partnership has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
SECTION 1.
|
DEFINITIONS 1
|
SECTION 2.
|
DESCRIPTION OF SHARES. 4
|
SECTION 3.
|
PLACEMENT NOTICES. 6
|
SECTION 4.
|
EXECUTION OF PLACEMENTS BY THE SALES AGENT AND THE FORWARD SELLER. 8
|
SECTION 5.
|
SUSPENSION OF OFFERINGS. 9
|
SECTION 6.
|
REPRESENTATIONS AND WARRANTIES. 10
|
SECTION 7.
|
DELIVERY TO THE SALES AGENT; SETTLEMENT. 30
|
SECTION 8.
|
COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. 32
|
SECTION 9.
|
PAYMENT OF EXPENSES. 40
|
SECTION 10.
|
CONDITIONS OF THE SALES AGENT’S, FORWARD SELLER’S AND FORWARD PURCHASER’S OBLIGATIONS. 41
|
SECTION 11.
|
INDEMNIFICATION. 43
|
SECTION 12.
|
REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. 47
|
SECTION 13.
|
TERMINATION OF AGREEMENT. 47
|
SECTION 14.
|
NOTICES. 48
|
SECTION 15.
|
RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES. 50
|
SECTION 16.
|
PARTIES. 50
|
SECTION 17.
|
ADJUSTMENTS FOR STOCK SPLITS. 50
|
SECTION 18.
|
GOVERNING LAW AND TIME. 50
|
SECTION 19.
|
EFFECT OF HEADINGS. 50
|
SECTION 20.
|
PERMITTED FREE WRITING PROSPECTUSES. 50
|
SECTION 21.
|
ABSENCE OF A FIDUCIARY RELATIONSHIP. 51
|
|
ii
|
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
$[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
$[___]]
|
The Sales Agent
Jason Demark Telephone: 212-405-7340
Address: 1221 Avenue of the Americas, 6
th
Floor
New York, New York 10020
Email:
jason.demark@mufgsecurities.com
Andrew Wedderburn-Maxwell
Telephone: 212-405-7490
Address: 1221 Avenue of the Americas, 6
th
Floor
New York, New York 10020
Email:
andrew.wedderburn-maxwell@mufgsecurities.com
|
Healthcare Trust of America, Inc.
Scott D. Peters
Tel: (480) 998-3478
Email: scottpeters@htareit.com
Robert A. Milligan
Tel: (480) 998-3478
Email: robertmilligan@htareit.com
|
The Forward Seller and the Forward Purchaser
Michael Gordon Telephone: 212-405-7376
Address: 1221 Avenue of the Americas, 6
th
Floor
New York, New York 10020
Email:
Michael.gordon@mufgsecurities.com
Kathleen Considine
Telephone: 212-405-7393
Address: 1221 Avenue of the Americas, 6
th
Floor
New York, New York 10020
Email:
Kathleen.considine@mufgsecurities.com
|
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Operating Partnership has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
SECTION 1.
|
DEFINITIONS 1
|
SECTION 2.
|
DESCRIPTION OF SHARES. 4
|
SECTION 3.
|
PLACEMENT NOTICES. 6
|
SECTION 4.
|
EXECUTION OF PLACEMENTS BY THE SALES AGENT AND THE FORWARD SELLER. 8
|
SECTION 5.
|
SUSPENSION OF OFFERINGS. 9
|
SECTION 6.
|
REPRESENTATIONS AND WARRANTIES. 10
|
SECTION 7.
|
DELIVERY TO THE SALES AGENT; SETTLEMENT. 30
|
SECTION 8.
|
COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. 32
|
SECTION 9.
|
PAYMENT OF EXPENSES. 40
|
SECTION 10.
|
CONDITIONS OF THE SALES AGENT’S, FORWARD SELLER’S AND FORWARD PURCHASER’S OBLIGATIONS. 41
|
SECTION 11.
|
INDEMNIFICATION. 43
|
SECTION 12.
|
REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. 47
|
SECTION 13.
|
TERMINATION OF AGREEMENT. 47
|
SECTION 14.
|
NOTICES. 48
|
SECTION 15.
|
RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES. 49
|
SECTION 16.
|
PARTIES. 50
|
SECTION 17.
|
ADJUSTMENTS FOR STOCK SPLITS. 50
|
SECTION 18.
|
GOVERNING LAW AND TIME. 50
|
SECTION 19.
|
EFFECT OF HEADINGS. 50
|
SECTION 20.
|
PERMITTED FREE WRITING PROSPECTUSES. 50
|
SECTION 21.
|
ABSENCE OF A FIDUCIARY RELATIONSHIP. 51
|
|
ii
|
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
$[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
$[___]]
|
The Sales Agent
Jennifer Lynch Email: Jennifer.r.lynch@wellsfargo.com
Billy O’Connell
Email: william.oconnell@wellsfargo.com
Josie Callanan
Email: josie.callanan@wellsfargo.com
Randy Williamson
Email: rwilliamson@eastdilsecured.com
Chris Flouhouse
Email: chris.flouhouse@wellsfargo.com
Ben Jaenicke
Email: bjaenicke@eastdilsecured.com
Rohit Mehta
Email: rohit.mehta2@wellsfargo.com |
Healthcare Trust of America, Inc.
Scott D. Peters
Tel: (480) 998-3478
Email: scottpeters@htareit.com
Robert A. Milligan
Tel: (480) 998-3478
Email: robertmilligan@htareit.com
|
The Forward Seller and the Forward Purchaser
Each of the individuals listed under The Sales Agent above and: CorporateDerivativeNotifications@wellsfargo.com |
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Operating Partnership has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
SECTION 1.
|
DEFINITIONS 1
|
SECTION 2.
|
DESCRIPTION OF SHARES. 4
|
SECTION 3.
|
PLACEMENT NOTICES. 6
|
SECTION 4.
|
EXECUTION OF PLACEMENTS BY THE SALES AGENT AND THE FORWARD SELLER. 8
|
SECTION 5.
|
SUSPENSION OF OFFERINGS. 9
|
SECTION 6.
|
REPRESENTATIONS AND WARRANTIES. 10
|
SECTION 7.
|
DELIVERY TO THE SALES AGENT; SETTLEMENT. 30
|
SECTION 8.
|
COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. 32
|
SECTION 9.
|
PAYMENT OF EXPENSES. 40
|
SECTION 10.
|
CONDITIONS OF THE SALES AGENT’S, FORWARD SELLER’S AND FORWARD PURCHASER’S OBLIGATIONS. 41
|
SECTION 11.
|
INDEMNIFICATION. 43
|
SECTION 12.
|
REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. 47
|
SECTION 13.
|
TERMINATION OF AGREEMENT. 47
|
SECTION 14.
|
NOTICES. 48
|
SECTION 15.
|
RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES. 50
|
SECTION 16.
|
PARTIES. 50
|
SECTION 17.
|
ADJUSTMENTS FOR STOCK SPLITS. 50
|
SECTION 18.
|
GOVERNING LAW AND TIME. 50
|
SECTION 19.
|
EFFECT OF HEADINGS. 51
|
SECTION 20.
|
PERMITTED FREE WRITING PROSPECTUSES. 51
|
SECTION 21.
|
ABSENCE OF A FIDUCIARY RELATIONSHIP. 51
|
|
ii
|
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
$[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
$[___]]
|
The Sales Agent
Christine Roemer
Equity Financial Products | ECM
Bank of America Merrill Lynch
Merrill Lynch, Pierce, Fenner & Smith
Tel: (646) 855-8900
christine.roemer@baml.com
Rohan Handa
Equity Capital Markets
Bank of America Merrill Lynch Office: 646.855.8654 | Fax: 212.235.8325 rohan.handa@baml.com |
Healthcare Trust of America, Inc.
Scott D. Peters
Tel: (480) 998-3478
Email: scottpeters@htareit.com
Robert A. Milligan
Tel: (480) 998-3478
Email: robertmilligan@htareit.com
|
The Forward Seller and the Forward Purchaser
Christine Roemer
Equity Financial Products | ECM
Bank of America Merrill Lynch
Merrill Lynch, Pierce, Fenner & Smith
Tel: (646) 855-8900
christine.roemer@baml.com
Rohan Handa
Equity Capital Markets
Bank of America Merrill Lynch Office: 646.855.8654 | Fax: 212.235.8325 rohan.handa@baml.com |
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Operating Partnership has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
SECTION 1.
|
DEFINITIONS 1
|
SECTION 2.
|
DESCRIPTION OF SHARES. 3
|
SECTION 3.
|
PLACEMENT NOTICES. 5
|
SECTION 4.
|
EXECUTION OF PLACEMENTS BY THE SALES AGENT AND THE FORWARD SELLER. 7
|
SECTION 5.
|
SUSPENSION OF OFFERINGS. 9
|
SECTION 6.
|
REPRESENTATIONS AND WARRANTIES. 9
|
SECTION 7.
|
DELIVERY TO THE SALES AGENT; SETTLEMENT. 29
|
SECTION 8.
|
COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. 32
|
SECTION 9.
|
PAYMENT OF EXPENSES. 39
|
SECTION 10.
|
CONDITIONS OF THE SALES AGENT’S, FORWARD SELLER’S AND FORWARD PURCHASER’S OBLIGATIONS. 40
|
SECTION 11.
|
INDEMNIFICATION. 43
|
SECTION 12.
|
REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. 46
|
SECTION 13.
|
TERMINATION OF AGREEMENT. 46
|
SECTION 14.
|
NOTICES. 48
|
SECTION 15.
|
PARTIES. 49
|
SECTION 16.
|
ADJUSTMENTS FOR STOCK SPLITS. 49
|
SECTION 17.
|
GOVERNING LAW AND TIME. 49
|
SECTION 18.
|
EFFECT OF HEADINGS. 49
|
SECTION 19.
|
PERMITTED FREE WRITING PROSPECTUSES. 49
|
SECTION 20.
|
ABSENCE OF A FIDUCIARY RELATIONSHIP. 50
|
|
ii
|
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
$[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
$[___]]
|
The Sales Agent
Donald Lynaugh
Email: DLynaugh@Jefferies.com
Phone: (917) 421-1964
Mike Judlowe
Email: MJudlowe@Jefferies.com
Phone: (212) 323-7515
Michael Magarro
Email: MMagarro@jefferies.com
Phone: (917) 421-1963
|
Healthcare Trust of America, Inc.
Scott D. Peters
Tel: (480) 998-3478
Email: scottpeters@htareit.com
Robert A. Milligan
Tel: (480) 998-3478
Email: robertmilligan@htareit.com
|
The Forward Seller and the Forward Purchaser
Each of the individuals listed under The Sales Agent above |
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
i.
|
The representations and warranties of the Company and the Operating Partnership in
Section 6
of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
|
ii.
|
The Operating Partnership has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Sales Agents, the Forward Sellers and the Forward Purchasers, as those terms are defined in the Agreements).
|
Title:
|
Chief Financial Officer, Secretary and Treasurer
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
JPMorgan Chase Bank, National Association, London Branch
|
Re:
|
Issuer Share Forward Sale Transactions
|
Date:
|
December 28, 2018
|
|
|
1.
|
Each Confirmation is subject to, and incorporates, the 2002 ISDA Equity Derivatives Definitions (the “
Equity Definitions
”), as published by the International Swaps and Derivatives Association, Inc. (“
ISDA
”). For purposes of the Equity Definitions, each Transaction will be deemed to be a Share Forward Transaction.
|
2.
|
The terms of the particular Transactions to which this Master Confirmation relates are as follows:
|
Trade Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction.
|
Effective Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied.
|
Buyer:
|
Dealer
|
Seller:
|
Counterparty
|
Maturity Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Forward Placement Notice (as defined in the Equity Distribution Agreement) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day).
|
Shares:
|
The shares of Class A common stock, par value $0.01 per Share, of Counterparty (Ticker: “HTA”)
|
Number of Shares:
|
For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Forward Hedge Shares (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates.
|
Settlement Currency:
|
USD
|
Exchange:
|
The New York Stock Exchange
|
Related Exchange:
|
All Exchanges
|
Prepayment:
|
Not Applicable
|
Variable Obligation:
|
Not Applicable
|
Forward Price:
|
For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any calendar day thereafter, the product of the Forward Price for such Transaction on the immediately preceding calendar day and
|
Initial Forward Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1
minus
the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein.
|
Volume-Weighted Hedge Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the price per share of Forward Hedge Shares (as defined in the Equity Distribution Agreement) sold by Dealer (or its agent or affiliate) on each Trading Day of the Forward Hedge Selling Period for such Transaction, as determined by the Calculation Agent;
provided
that, solely for the purposes of calculating the Initial Forward Price, each such sale price (other than the sale price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction.
|
Daily Rate:
|
For any day, the Overnight Bank Rate
minus
the Spread.
|
Spread:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Overnight Bank Rate:
|
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page;
provided
that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears.
|
Forward Price Reduction Dates:
|
For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price Reduction Date” in the Forward Placement Notice for such Transaction.
|
Forward Price Reduction Amount:
|
For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.
|
Valuation Date:
|
For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
|
Unwind Dates:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement and ending no later than the Maturity Date.
|
First Unwind Date:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice.
|
Unwind Period:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement.
|
Cash Settlement Valuation Disruption:
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
|
Market Disruption Event:
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Valuation Period” after the word “material,” in the third line thereof.
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
Settlement:
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction.
|
Settlement Notice:
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 40th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “
Settlement Notice
”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “
Settlement Shares
”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement;
provided
that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (
provided
that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction).
|
Undesignated Shares:
|
For any Transaction, as of any date, the Number of Shares for such Transaction
minus
the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred.
|
Settlement Method Election:
|
For any Transaction, applicable;
provided
that:
|
Threshold Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50% of the Initial Forward Price for such Transaction.
|
Electing Party:
|
Counterparty
|
Settlement Method Election Date:
|
With respect to any Settlement of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement.
|
Default Settlement Method:
|
Physical Settlement
|
Physical Settlement:
|
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date
multiplied by
the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares.
|
Settlement Date:
|
For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement.
|
Net Share Settlement:
|
On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price.
|
Net Share Settlement Date:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle.
|
Net Share Settlement Amount:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by
the Settlement Price for such Settlement.
|
Forward Cash Settlement Amount:
|
Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall be equal to (i) the number of Settlement Shares for such Settlement
multiplied by
(ii) an amount equal to (A) the Settlement Price for such Settlement
minus
(B)
the Relevant Forward Price for such Settlement.
|
Relevant Forward Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement.
|
Settlement Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to such Settlement,
plus
a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD0.075.
|
10b-18 VWAP:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “HTA <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent.
For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could
|
Unwind Activities:
|
The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge position in respect of each Transaction shall be determined by Dealer in good faith and in a commercially reasonable manner. Without limiting the generality of the foregoing, in the event that Dealer concludes, in its reasonable discretion based on advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, so long as such policies or procedures are generally applicable in similar situations and applied to the relevant Transaction in a non-discriminatory manner) (a “
Regulatory Disruption
”), for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer may (but shall not be required to) notify Counterparty in writing that a Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, in which case Dealer shall, to the extent practicable in its good faith discretion, specify the nature of such Regulatory Disruption, and, for the avoidance of doubt, such Scheduled Trading Day shall not be an Unwind Date for such Transaction and such Regulatory Disruption shall be deemed to be a Market Disruption Event;
provided
that Dealer may exercise its right to suspend under this sentence only in good faith in relation to events or circumstances that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions.
|
Relevant Settlement Date:
|
For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be.
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction;
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares.
|
Potential Adjustment Events:
|
An Extraordinary Dividend shall not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction.
|
Extraordinary Dividend:
|
For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar quarter for such Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant quarter for such Transaction).
|
Regular Dividend Amount:
|
For each Transaction and for each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Forward Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction.
|
Method of Adjustment:
|
Calculation Agent Adjustment
|
Extraordinary Events:
|
The consequences that would otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply.
|
Tender Offer:
|
Applicable;
provided
that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%”.
|
Delisting:
|
In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
|
Change in Law:
|
Applicable;
provided
that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made in good faith and in a reasonable manner that is consistent with determinations made by the relevant party in respect of similar situations, and without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated,
|
Failure to Deliver:
|
Applicable with respect to a Transaction if Dealer is required to deliver Shares under such Transaction; otherwise, Not Applicable.
|
Hedging Disruption:
|
Applicable
|
Increased Cost of Hedging:
|
Applicable;
provided
that Section 12.9(b)(vi) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third and fourth sentences thereof.
|
Increased Cost of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable.
|
Initial Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Loss of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the second sentence thereof.
|
Maximum Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer;
provided
that, when making any determination or calculation as “Hedging Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Hedging Party were the Calculation Agent.
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer;
provided
that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Determining Party were the Calculation Agent.
|
Early Valuation:
|
For any Transaction, notwithstanding anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6 of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt, any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated with such Extraordinary Dividend.
|
ISDA Event:
|
(i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the public announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as reasonably determined by the Calculation Agent.
|
Amendment to Merger Event:
|
Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof.
|
Hedging Event:
|
In respect of any Transaction, the occurrence of any of the following events on or following the first Trading Day of the Forward Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a reasonably satisfactory Lending Party within the required time period as provided in Section 12.9(b)(iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) (A) an Increased Cost of Stock Borrow or (B) an Increased Cost of Hedging in connection with which, in the case of sub-clause (A) or (B), Counterparty does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) or Section 12.9(b)(vi)(A) of the Equity Definitions, as applicable, or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) or Section 12.9(b)(vi)(B) of the Equity Definitions, as applicable, or (iii) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price in a commercially reasonable manner to account for such Hedging Event and any reasonable and documented out-of-pocket costs or expenses incurred by Dealer as a result of such Hedging Event.
|
Remaining Shares:
|
For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day
minus
the Unwound Shares for such Transaction for such Unwind Period on such day).
|
Unwound Shares:
|
For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day.
|
Non-Reliance:
|
Applicable
|
Regarding Hedging Activities:
|
Applicable
|
Additional Acknowledgements:
|
Applicable
|
Transfer:
|
Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligation is guaranteed by Dealer or Dealer’s
|
Calculation Agent:
|
Dealer;
provided
that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives reasonably acceptable to Dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation, as the case may be;
provided
that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information.
|
Instructions:
|
To be provided by Counterparty
|
Dealer Payment/Delivery Instructions:
|
To be provided by Dealer
|
for Purpose of Giving Notice:
|
To be provided by Counterparty
|
for Purpose of Giving Notice:
|
JPMorgan Chase Bank, National Association
|
Facsimile No:
|
1-866-886-4506
|
With a copy to:
|
|
Attention: Stephanie Little
|
Telephone: (312) 732-3229
|
3.
|
Effectiveness.
|
4.
|
Additional Mutual Representations and Warranties
. In addition to the representations and warranties in the Agreement, each party represents and warrants to the other party that it is an “eligible contract participant”, as defined in the U.S. Commodity Exchange Act (as amended), and an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act of 1933 (as amended) (the “
Securities Act
”), and is entering into each Transaction hereunder as principal and not for the benefit of any third party.
|
5.
|
Additional Representations and Warranties of Counterparty
. The representations and warranties of Counterparty set forth in Section 6 of the Equity Distribution Agreement are true and correct as of the date hereof, each “Forward Date” (as defined in the Equity Distribution Agreement), each Trade Date for any Transaction and each “Settlement Date” (as defined in the Equity Distribution Agreement) and are hereby deemed to be repeated to Dealer as if set forth herein. In addition to the representations and warranties in Section 6 of the Equity Distribution Agreement, the Agreement and those contained elsewhere herein, Counterparty represents and warrants to Dealer, and agrees with Dealer, that:
|
6.
|
Additional Covenants of Counterparty.
|
7.
|
Termination on Bankruptcy
. The parties hereto agree that, notwithstanding anything to the contrary in the Agreement or the Equity Definitions, each Transaction constitutes a contract to issue a security of Counterparty as contemplated by Section 365(c)(2) of the Bankruptcy Code and that a Transaction and the obligations and rights of Counterparty and Dealer (except for any liability as a result of breach of any of the representations or warranties provided by Counterparty in Section 4 or Section 5 above) shall immediately terminate, without the necessity of any notice, payment (whether directly, by netting or otherwise) or other action by Counterparty or Dealer, if, on or prior to the final Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date, as the case may be, for such Transaction an Insolvency Filing occurs or any other proceeding commences with respect to Counterparty under the Bankruptcy Code (a “
Bankruptcy Termination Event
”).
|
8.
|
Additional Provisions.
|
9.
|
Indemnification
. Counterparty agrees to indemnify Dealer and its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such affiliate or person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities, joint and several, incurred by or asserted against such Indemnified Party arising out of, in connection with, or relating to, any breach of any covenant or representation made by Counterparty in this Master Confirmation, any Supplemental Confirmation or the Agreement and will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and reasonable expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising therefrom (whether or not such Indemnified Party is a party thereto), except to the extent determined in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from Dealer’s gross negligence, fraud, bad faith and/or willful misconduct or from a breach of any representation or covenant of Dealer contained in this Master Confirmation, any Supplemental Confirmation or the Agreement. The foregoing provisions shall survive any termination or completion of the Transactions.
|
10.
|
Beneficial Ownership
. Notwithstanding anything to the contrary in the Agreement, this Master Confirmation or any Supplemental Confirmation, in no event shall Dealer be entitled to receive, or be deemed to receive, or have the “right to acquire” (within the meaning of NYSE Rule 312.04(g)) Shares to the extent that, upon such receipt of such Shares, (i) the “beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Dealer, any of its affiliates’ business units subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer with respect to “beneficial ownership” of any Shares (collectively, “
Dealer Group
”) would be equal to or greater than the lesser of (x) 4.5% of the outstanding Shares (such condition, an “
Excess Section 13 Ownership Position
”), and (y) 4.9% of the outstanding Shares as of the Trade Date for any Transaction (such number of Shares, the “
Threshold Number of Shares
” and such condition, the “
Excess NYSE Ownership Position
”) or (ii) Dealer, Dealer Group or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “
Dealer Person
”) under Sections 3-601 through 3-603 of the Maryland Code (Corporations and Associations) or any state or federal bank holding company or banking laws, or any federal, state or local laws, regulations or regulatory orders applicable to ownership of Shares (“
Applicable Laws
”), would own, beneficially own, constructively own, control, hold the power to vote or otherwise meet a relevant definition of ownership in excess of a number of Shares equal to (x) the lesser of (A) the maximum number of Shares that would be permitted under Applicable Laws and (B) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received or that would give rise to any consequences under the constitutive documents
|
11.
|
Non-Confidentiality
. The parties hereby agree that (i) effective from the date of commencement of discussions concerning the Transactions, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transactions and all materials of any kind, including opinions or other tax analyses, provided by Dealer and its affiliates to Counterparty relating to such tax treatment and tax structure;
provided
that the foregoing does not constitute an authorization to disclose the identity of Dealer or its affiliates, agents or advisers, or, except to the extent relating to such tax structure or tax treatment, any specific pricing terms or commercial or financial information, and (ii) Dealer does not assert any claim of proprietary ownership in respect of any description contained herein or therein relating to the use of any entities, plans or arrangements to give rise to a particular United States federal income tax treatment for Counterparty.
|
12.
|
Restricted Shares
. If Counterparty is unable to comply with the covenant of Counterparty contained in Section 6 above or Dealer otherwise determines in its reasonable opinion that any Shares to be delivered to Dealer by Counterparty under any Transaction may not be freely returned by Dealer to securities lenders as described in the covenant of Counterparty contained in Section 6 above, then delivery of any such Settlement Shares (the “
Unregistered Settlement Shares
”) shall be effected pursuant to Annex B hereto, unless waived by Dealer.
|
13.
|
Use of Shares
. Dealer acknowledges and agrees that, except in the case of a Private Placement Settlement, Dealer shall use any Shares delivered by Counterparty to Dealer on any Settlement Date to return to securities lenders to close out borrowings created by Dealer in connection with its hedging activities related to exposure under the Transactions or otherwise in compliance with applicable law.
|
14.
|
Rule 10b-18
. In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction, Dealer shall use commercially reasonable efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases and taking into account any applicable Securities and Exchange Commission no-action letters as appropriate, and subject to any delays between the execution and reporting of a trade of the Shares on the Exchange and other circumstances beyond Dealer’s control.
|
15.
|
Governing Law
. Notwithstanding anything to the contrary in the Agreement, the Agreement, this Master Confirmation, any Supplemental Confirmation and all matters arising in connection with the Agreement this Master Confirmation and any Supplemental Confirmation shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
|
16.
|
Set-Off.
|
17.
|
Staggered Settlement
. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation to deliver any Shares or other securities on any date due (an “
Original Delivery Date
”) by making separate deliveries of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as the aggregate number of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number required to be delivered on such Original Delivery Date.
|
18.
|
Waiver of Trial by Jury
. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.
|
19.
|
Jurisdiction
. The parties hereto irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of New York in connection with all matters relating hereto and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts. Nothing in this provision shall prohibit a party from bringing an action to enforce a money judgment in any other jurisdiction.
|
20.
|
Counterparts
. This Master Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Master Confirmation by signing and delivering one or more counterparts.
|
21.
|
Delivery of Cash
. For the avoidance of doubt, nothing in this Master Confirmation or any Supplemental Confirmation shall be interpreted as requiring Counterparty to deliver cash or other assets in respect of the settlement of the Transactions, except in circumstances where the required cash or other asset settlement thereof is permitted for classification of the contract as equity by ASC 815-40,
Derivatives and Hedging – Contracts in Entity’s Own Equity
, as in effect on the date hereof.
|
22.
|
Other Forward Transactions
. Counterparty agrees that (x) it shall not cause to occur, or permit to exist, any Forward Hedge Selling Period at any time there is (1) a “Forward Hedge Selling Period” (or equivalent term) relating to any other issuer forward sale or similar transaction (including, without limitation, any “Transaction” under (as and defined under) any substantially identical master forward confirmation) with any financial institution other than Dealer (an “
Other Forward Transaction
”) or (2) any “Unwind Period” (or equivalent term) hereunder or under any Other Forward Transaction, and (y) Counterparty shall not cause to occur, or permit to exist, an Unwind Period at any time there is an “Unwind Period” (or equivalent term) under any Other Forward Transaction or a “Forward Hedge Selling Period” (or equivalent term) relating to any Transaction or any Other Forward Transaction.
|
By:
|
/s/ Sud Subraamanyan
Name: Sud Subraamanyan Title: Managing Director |
By:
|
/s/ Robert Milligan
Name: Robert Milligan Title: Chief Financial Officer, Treasurer and Secretary |
Re:
|
Forward Sales of Class A Common Stock of Healthcare Trust of America, Inc.
|
(i)
|
the executed Agreements;
|
(ii)
|
the minutes of the meetings of, or actions by written consent or resolutions of, the Board of Directors of the Company, or any committee thereof, with respect to the transactions covered by this opinion letter;
|
(iii)
|
the executed certificates of the Company dated as of the date hereof (the “
Company Certificates
”);
|
(iv)
|
the executed certificates of the Operating Partnership dated as of the date hereof (such certificates together with the Company Certificates, the “
Officer’s Certificates
”);
|
(v)
|
the orders, judgments and decrees identified to us by the Company and the Operating Partnership and set forth in
Schedule A
attached hereto;
|
(vi)
|
the registration statement on Form S-3ASR, File No. 333-223172, filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on February 23, 2018 (excluding the documents incorporated therein by reference, the “
Registration Statement
”);
|
(vii)
|
the prospectus dated February 23, 2018 (the “
Base Prospectus
”);
|
(viii)
|
the prospectus supplement dated December 28, 2018 (the “
Prospectus Supplement
” and, together with the Base Prospectus, but excluding the documents incorporated therein by reference, the “
Prospectus
”); and
|
(ix)
|
the Company’s and Operating Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 20, 2018 (the “
2018 Annual Report on Form 10-K
”); the Company’s and Operating Partnership’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, filed with the Commission on April 30, 2018, August 3, 2018 and October 26, 2018, respectively; the Company’s and/or Operating Partnership’s Current Reports on Form 8-K filed with the Commission on February 15, 2018 (but only with respect to Item 8.01), March 16, 2018, April 23, 2018, April 27, 2018 (but only with respect to Item 8.01), June 8, 2018 (but only with respect to Item 8.01), July 10, 2018 (but only with respect to Item 5.07), August 2, 2018 (but only with respect to Item 8.01) and October 25, 2018 (but only with respect to Item 8.01); the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 23, 2018; and the description of the Class A Common Stock contained in the Company’s registration statement on Form 8-A, filed with the Commission on June 5, 2012 (collectively, the “
Incorporated Documents
”).
|
(a)
|
We have assumed that the Sales Agent and the Dealer have all the requisite power and authority, and have taken any and all necessary corporate, partnership or limited liability company action to execute and deliver the Agreements, as applicable. To the extent the Company’s or the Operating Partnership’s obligations depend on the enforceability of the Agreements against the Sales Agent and/or the Dealer, we have assumed that the Agreements are enforceable against the Sales Agent and the Dealer, as applicable.
|
(b)
|
For purposes of our opinion in paragraph (1), we have relied solely on the review of certificates from public officials in the States of Arizona and New York, each dated as of December [•], 2018.
|
(c)
|
With regards to our opinion in paragraph (4), we express no opinion as to the indemnification or contribution sections of the Agreements.
|
(d)
|
For purposes of our opinions in paragraphs (4) and (5), we have assumed that neither the Company nor the Operating Partnership has taken, or in the future will take, any discretionary action (including a decision not to act) permitted by the Agreements that would cause the performance of the Agreements to (i) violate the RULPA or any U.S. federal, California or New York statute, rule or regulation, (ii) constitute a violation or breach of or default under any of the agreements, orders, judgments or decrees referred to in paragraph (4), or (iii) require any order, consent, permit or approval to be obtained from any U.S. federal, California or New York governmental authority. In addition, we do not express any opinion with respect to orders, consents, permits or approvals that may be necessary in connection with the business or operations of the Company or the Operating Partnership.
|
(e)
|
In addition, we have assumed the matters set forth in the opinions of Venable LLP set forth in their opinion letter dated the date hereof, a copy of which has been delivered to you.
|
(1)
|
The Company is qualified as a foreign corporation to do business in the States of Arizona and New York.
|
(2)
|
Assuming due authorization by all necessary corporate action, each of the Agreements have been duly executed and delivered by the Company.
|
(3)
|
Assuming due authorization by all necessary corporate action by the Company, each of the Agreements constitute the legally valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including without limitation fraudulent conveyance laws) and by general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
|
(4)
|
The execution and delivery of each of the Agreements by the Company and the performance of its obligations thereunder (including the sale and issuance of the Class A Shares) will not (i) violate the Company’s charter or bylaws, or the certificate of limited partnership or partnership agreement of the Operating Partnership, (ii) violate, breach, or result in a default under any of the material agreements to which the Company or the Operating Partnership is a party that are listed as exhibits to the 2017 Annual Report on Form 10-K or any Quarterly or Current Reports filed by the Company thereafter and prior to the date of this opinion letter (each such agreement, an “
Other Agreement
”), (iii) violate any current U.S. federal, California or New York statute, rule or regulation that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership or to transactions of the type contemplated by the Agreements, or (iv) breach or otherwise violate any existing obligation of or restriction on the Company and the Operating Partnership under any order, judgment or decree of any California, New York or U.S. federal court or governmental authority binding on the Company and the Operating Partnership and identified on
Schedule A
hereto, except that we express no opinion regarding (A) any U.S. federal securities laws, (B) Blue Sky or state securities laws, (C) the indemnification and contribution sections of the Agreements, or (D) any violation, breach, default or other occurrence of the type referred to in clause (ii), (iii) or (iv) of this paragraph that could not, individually or in the aggregate, reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated by the Agreements. If an Other Agreement is governed by the laws of a jurisdiction other than California or New York, we have assumed such Other Agreement would be interpreted in accordance with its plain
|
(5)
|
No filing with, or consent, approval or permit of any U.S. federal, California or New York governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership is required on the part of the Company or the Operating Partnership for the execution and delivery of the Agreements by the Company and the Operating Partnership, as applicable, and the issuance and sale of the Class A Shares, except such as (i) are disclosed in the Registration Statement or the Prospectus, (ii) have been made or obtained by the Company or the Operating Partnership, (iii) may be required under applicable Blue Sky or state or foreign securities or takeover laws or (iv) may be required under rules and regulations of The New York Stock Exchange in connection with the issuance and sale of the Class A Shares.
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
JPMorgan Chase Bank, National Association, London Branch
|
Re:
|
Issuer Share Forward Sale Transaction
|
Date:
|
[_________], 20[__]
|
|
|
Trade Date:
|
[_______], 20[__]
|
Effective Date:
|
[_______], 20[__]
|
Maturity Date:
|
[_______], 20[__]
|
Number of Shares:
|
[________]
|
Initial Forward Price:
|
USD [____]
|
Spread:
|
[_.__]%
|
Volume-Weighted Hedge Price:
|
USD [____]
|
Threshold Price:
|
USD [____]
|
Initial Stock Loan Rate:
|
[___] basis points per annum
|
Maximum Stock Loan Rate:
|
[___] basis points per annum
|
Forward Price Reduction Date:
|
Forward Price Reduction Amount:
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
……..
|
……..
|
[______], 20[__]
|
USD[___]
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
USD[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
USD[___]
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Bank of Montreal
|
Re:
|
Issuer Share Forward Sale Transactions
|
Date:
|
December 28, 2018
|
|
|
Trade Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction.
|
Effective Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied.
|
Buyer:
|
Dealer
|
Seller:
|
Counterparty
|
Maturity Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Forward Placement Notice (as defined in the Equity Distribution Agreement) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day).
|
Shares:
|
The shares of Class A common stock, par value $0.01 per Share, of Counterparty (Ticker: “HTA”)
|
Number of Shares:
|
For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Forward Hedge Shares (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates.
|
Settlement Currency:
|
USD
|
Exchange:
|
The New York Stock Exchange
|
Related Exchange:
|
All Exchanges
|
Prepayment:
|
Not Applicable
|
Variable Obligation:
|
Not Applicable
|
Forward Price:
|
For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any calendar day thereafter, the product of the Forward Price for such Transaction on the immediately preceding calendar day and
|
Initial Forward Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1
minus
the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein.
|
Volume-Weighted Hedge Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the price per share of Forward Hedge Shares (as defined in the Equity Distribution Agreement) sold by Dealer (or its agent or affiliate) on each Trading Day of the Forward Hedge Selling Period for such Transaction, as determined by the Calculation Agent;
provided
that, solely for the purposes of calculating the Initial Forward Price, each such sale price (other than the sale price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction.
|
Daily Rate:
|
For any day, the Overnight Bank Rate
minus
the Spread.
|
Spread:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Overnight Bank Rate:
|
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page;
provided
that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears.
|
Forward Price Reduction Dates:
|
For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price Reduction Date” in the Forward Placement Notice for such Transaction.
|
Forward Price Reduction Amount:
|
For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.
|
Valuation Date:
|
For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
|
Unwind Dates:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement and ending no later than the Maturity Date.
|
First Unwind Date:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice.
|
Unwind Period:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement.
|
Cash Settlement Valuation Disruption:
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
|
Market Disruption Event:
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Valuation Period” after the word “material,” in the third line thereof.
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
Settlement:
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction.
|
Settlement Notice:
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 40th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “
Settlement Notice
”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “
Settlement Shares
”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement;
provided
that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (
provided
that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction).
|
Undesignated Shares:
|
For any Transaction, as of any date, the Number of Shares for such Transaction
minus
the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred.
|
Settlement Method Election:
|
For any Transaction, applicable;
provided
that:
|
Threshold Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50% of the Initial Forward Price for such Transaction.
|
Electing Party:
|
Counterparty
|
Settlement Method Election Date:
|
With respect to any Settlement of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement.
|
Default Settlement Method:
|
Physical Settlement
|
Physical Settlement:
|
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date
multiplied by
the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares.
|
Settlement Date:
|
For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement.
|
Net Share Settlement:
|
On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price.
|
Net Share Settlement Date:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle.
|
Net Share Settlement Amount:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by
the Settlement Price for such Settlement.
|
Forward Cash Settlement Amount:
|
Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall be equal to (i) the number of Settlement Shares for such Settlement
multiplied by
(ii) an amount equal to (A) the Settlement Price for such Settlement
minus
(B)
the Relevant Forward Price for such Settlement.
|
Relevant Forward Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement.
|
Settlement Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to such Settlement,
plus
a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD0.075.
|
10b-18 VWAP:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “HTA <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is,
|
Unwind Activities:
|
The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge position in respect of each Transaction shall be determined by Dealer in good faith and in a commercially reasonable manner. Without limiting the generality of the foregoing, in the event that Dealer concludes, in its reasonable discretion based on advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, so long as such policies or procedures are generally applicable in similar situations and applied to the relevant Transaction in a non-discriminatory manner) (a “
Regulatory Disruption
”), for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer may (but shall not be required to) notify Counterparty in writing that a Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, in which case Dealer shall, to the extent practicable in its good faith discretion, specify the nature of such Regulatory Disruption, and, for the avoidance of doubt, such Scheduled Trading Day shall not be an Unwind Date for such Transaction and such Regulatory Disruption shall be deemed to be a Market Disruption Event;
provided
that Dealer may exercise its right to suspend under this sentence only in good faith in relation to events or circumstances that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions.
|
Relevant Settlement Date:
|
For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be.
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction;
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares.
|
Potential Adjustment Events:
|
An Extraordinary Dividend shall not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction.
|
Extraordinary Dividend:
|
For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar quarter for such Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant quarter for such Transaction).
|
Regular Dividend Amount:
|
For each Transaction and for each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Forward Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction.
|
Method of Adjustment:
|
Calculation Agent Adjustment
|
Extraordinary Events:
|
The consequences that would otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply.
|
Tender Offer:
|
Applicable;
provided
that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%”.
|
Delisting:
|
In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
|
Change in Law:
|
Applicable;
provided
that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any
|
Failure to Deliver:
|
Applicable with respect to a Transaction if Dealer is required to deliver Shares under such Transaction; otherwise, Not Applicable.
|
Hedging Disruption:
|
Applicable
|
Increased Cost of Hedging:
|
Applicable;
provided
that Section 12.9(b)(vi) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third and fourth sentences thereof.
|
Increased Cost of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable.
|
Initial Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Loss of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the second sentence thereof.
|
Maximum Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer;
provided
that, when making any determination or calculation as “Hedging Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Hedging Party were the Calculation Agent.
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer;
provided
that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Determining Party were the Calculation Agent.
|
Early Valuation:
|
For any Transaction, notwithstanding anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6 of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt, any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated with such Extraordinary Dividend.
|
ISDA Event:
|
(i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the public announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as reasonably determined by the Calculation Agent.
|
Amendment to Merger Event:
|
Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof.
|
Hedging Event:
|
In respect of any Transaction, the occurrence of any of the following events on or following the first Trading Day of the Forward Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a reasonably satisfactory Lending Party within the required time period as provided in Section 12.9(b)(iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) (A) an Increased Cost of Stock Borrow or (B) an Increased Cost of Hedging in connection with which, in the case of sub-clause (A) or (B), Counterparty does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) or Section 12.9(b)(vi)(A) of the Equity Definitions, as applicable, or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) or Section 12.9(b)(vi)(B) of the Equity Definitions, as applicable, or (iii) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price in a commercially reasonable manner to account for such Hedging Event and any reasonable and documented out-of-pocket costs or expenses incurred by Dealer as a result of such Hedging Event.
|
Remaining Shares:
|
For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day
minus
the Unwound Shares for such Transaction for such Unwind Period on such day).
|
Unwound Shares:
|
For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day.
|
Non-Reliance:
|
Applicable
|
Regarding Hedging Activities:
|
Applicable
|
Additional Acknowledgements:
|
Applicable
|
Transfer:
|
Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligation is guaranteed by Dealer or Dealer’s ultimate parent entity (a “
Transferee
”) without the consent of Counterparty;
provided
that (x) no Event of Default or Potential Event of Default shall have occurred with respect to either party solely as a result of such transfer and assignment, (y) prior written notice of such assignment and transfer is provided to Counterparty, and (z) such Transferee has long-term credit ratings equal to or better than the long-term credit ratings of Dealer at the time of transfer.
|
Calculation Agent:
|
Dealer;
provided
that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives reasonably acceptable to Dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation, as the case may be;
provided
that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information.
|
Instructions:
|
To be provided by Counterparty
|
Dealer Payment/Delivery Instructions:
|
To be provided by Dealer
|
for Purpose of Giving Notice:
|
To be provided by Counterparty
|
for Purpose of Giving Notice:
|
Bank of Montreal
|
Attention:
|
Associate General Counsel & Managing Director, Derivatives Legal Group
|
By:
|
/s/ Andrew Henderson
Name: Andrew Henderson Title: Associate Director, Derivatives Operations |
By:
|
/s/ David Raff
Name: David Raff Title: Managing Director |
By:
|
/s/ Eric Benedict
Name: Eric Benedict Title: Managing Director |
By:
|
/s/ Robert Milligan
Name: Robert Milligan Title: Chief Financial Officer, Treasurer and Secretary |
Re:
|
Forward Sales of Class A Common Stock of Healthcare Trust of America, Inc.
|
(i)
|
the executed Agreements;
|
(ii)
|
the minutes of the meetings of, or actions by written consent or resolutions of, the Board of Directors of the Company, or any committee thereof, with respect to the transactions covered by this opinion letter;
|
(iii)
|
the executed certificates of the Company dated as of the date hereof (the “
Company Certificates
”);
|
(iv)
|
the executed certificates of the Operating Partnership dated as of the date hereof (such certificates together with the Company Certificates, the “
Officer’s Certificates
”);
|
(v)
|
the orders, judgments and decrees identified to us by the Company and the Operating Partnership and set forth in
Schedule A
attached hereto;
|
(vi)
|
the registration statement on Form S-3ASR, File No. 333-223172, filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on February 23, 2018 (excluding the documents incorporated therein by reference, the “
Registration Statement
”);
|
(vii)
|
the prospectus dated February 23, 2018 (the “
Base Prospectus
”);
|
(viii)
|
the prospectus supplement dated December 28, 2018 (the “
Prospectus Supplement
” and, together with the Base Prospectus, but excluding the documents incorporated therein by reference, the “
Prospectus
”); and
|
(ix)
|
the Company’s and Operating Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 20, 2018 (the “
2018 Annual Report on Form 10-K
”); the Company’s and Operating Partnership’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, filed with the Commission on April 30, 2018, August 3, 2018 and October 26, 2018, respectively; the Company’s and/or Operating Partnership’s Current Reports on Form 8-K filed with the Commission on February 15, 2018 (but only with respect to Item 8.01), March 16, 2018, April 23, 2018, April 27, 2018 (but only with respect to Item 8.01), June 8, 2018 (but only with respect to Item 8.01), July 10, 2018 (but only with respect to Item 5.07), August 2, 2018 (but only with respect to Item 8.01) and October 25, 2018 (but only with respect to Item 8.01); the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 23, 2018; and the description of the Class A Common Stock contained in the Company’s registration statement on Form 8-A, filed with the Commission on June 5, 2012 (collectively, the “
Incorporated Documents
”).
|
(a)
|
We have assumed that the Sales Agent and the Dealer have all the requisite power and authority, and have taken any and all necessary corporate, partnership or limited liability company action to execute and deliver the Agreements, as applicable. To the extent the Company’s or the Operating Partnership’s obligations depend on the enforceability of the Agreements against the Sales Agent and/or the Dealer, we have assumed that the Agreements are enforceable against the Sales Agent and the Dealer, as applicable.
|
(b)
|
For purposes of our opinion in paragraph (1), we have relied solely on the review of certificates from public officials in the States of Arizona and New York, each dated as of December [●], 2018.
|
(c)
|
With regards to our opinion in paragraph (4), we express no opinion as to the indemnification or contribution sections of the Agreements.
|
(d)
|
For purposes of our opinions in paragraphs (4) and (5), we have assumed that neither the Company nor the Operating Partnership has taken, or in the future will take, any discretionary action (including a decision not to act) permitted by the Agreements that would cause the performance of the Agreements to (i) violate the RULPA or any U.S. federal, California or New York statute, rule or regulation, (ii) constitute a violation or breach of or default under any of the agreements, orders, judgments or decrees referred to in paragraph (4), or (iii) require any order, consent, permit or approval to be obtained from any U.S. federal, California or New York governmental authority. In addition, we do not express any opinion with respect to orders, consents, permits or approvals that may be necessary in connection with the business or operations of the Company or the Operating Partnership.
|
(e)
|
In addition, we have assumed the matters set forth in the opinions of Venable LLP set forth in their opinion letter dated the date hereof, a copy of which has been delivered to you.
|
(1)
|
The Company is qualified as a foreign corporation to do business in the States of Arizona and New York.
|
(2)
|
Assuming due authorization by all necessary corporate action, each of the Agreements have been duly executed and delivered by the Company.
|
(3)
|
Assuming due authorization by all necessary corporate action by the Company, each of the Agreements constitute the legally valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including without limitation fraudulent conveyance laws) and by general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
|
(4)
|
The execution and delivery of each of the Agreements by the Company and the performance of its obligations thereunder (including the sale and issuance of the Class A Shares) will not (i) violate the Company’s charter or bylaws, or the certificate of limited partnership or partnership agreement of the Operating Partnership, (ii) violate, breach, or result in a default under any of the material
|
(5)
|
No filing with, or consent, approval or permit of any U.S. federal, California or New York governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership is required on the part of the Company or the Operating Partnership for the execution and delivery of the Agreements by the Company and the Operating Partnership, as applicable, and the issuance and sale of the Class A Shares, except such as (i) are disclosed in the Registration Statement or the Prospectus, (ii) have been made or obtained by the Company or the Operating Partnership, (iii) may be required under applicable Blue Sky or state or foreign securities or takeover laws or (iv) may be required under rules and regulations of The New York Stock Exchange in connection with the issuance and sale of the Class A Shares.
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Bank of Montreal
|
Re:
|
Issuer Share Forward Sale Transaction
|
Date:
|
[_________], 20[__]
|
|
|
Trade Date:
|
[_______], 20[__]
|
Effective Date:
|
[_______], 20[__]
|
Maturity Date:
|
[_______], 20[__]
|
Number of Shares:
|
[________]
|
Initial Forward Price:
|
USD [____]
|
Spread:
|
[_.__]%
|
Volume-Weighted Hedge Price:
|
USD [____]
|
Threshold Price:
|
USD [____]
|
Initial Stock Loan Rate:
|
[___] basis points per annum
|
Maximum Stock Loan Rate:
|
[___] basis points per annum
|
By:
|
Name: Title: |
By:
|
Name: Title: |
By:
|
Name: Title: |
By:
|
Name: Title: |
Forward Price Reduction Date:
|
Forward Price Reduction Amount:
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
……..
|
……..
|
[______], 20[__]
|
USD[___]
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
USD[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
USD[___]
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
MUFG Securities EMEA plc
|
Re:
|
Issuer Share Forward Sale Transactions
|
Date:
|
December 28, 2018
|
|
|
1.
|
Each Confirmation is subject to, and incorporates, the 2002 ISDA Equity Derivatives Definitions (the “
Equity Definitions
”), as published by the International Swaps and Derivatives Association, Inc. (“
ISDA
”). For purposes of the Equity Definitions, each Transaction will be deemed to be a Share Forward Transaction.
|
2.
|
The terms of the particular Transactions to which this Master Confirmation relates are as follows:
|
Trade Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction.
|
Effective Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied.
|
Buyer:
|
Dealer
|
Seller:
|
Counterparty
|
Maturity Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Forward Placement Notice (as defined in the Equity Distribution Agreement) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day).
|
Shares:
|
The shares of Class A common stock, par value $0.01 per Share, of Counterparty (Ticker: “HTA”)
|
Number of Shares:
|
For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Forward Hedge Shares (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates.
|
Settlement Currency:
|
USD
|
Exchange:
|
The New York Stock Exchange
|
Related Exchange:
|
All Exchanges
|
Prepayment:
|
Not Applicable
|
Variable Obligation:
|
Not Applicable
|
Forward Price:
|
For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any calendar day thereafter, the product of the Forward Price for such Transaction on the immediately preceding calendar day and
|
Initial Forward Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1
minus
the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein.
|
Volume-Weighted Hedge Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the price per share of Forward Hedge Shares (as defined in the Equity Distribution Agreement) sold by Dealer (or its agent or affiliate) on each Trading Day of the Forward Hedge Selling Period for such Transaction, as determined by the Calculation Agent;
provided
that, solely for the purposes of calculating the Initial Forward Price, each such sale price (other than the sale price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction.
|
Daily Rate:
|
For any day, the Overnight Bank Rate
minus
the Spread.
|
Spread:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Overnight Bank Rate:
|
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page;
provided
that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears.
|
Forward Price Reduction Dates:
|
For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price Reduction Date” in the Forward Placement Notice for such Transaction.
|
Forward Price Reduction Amount:
|
For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.
|
Valuation Date:
|
For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
|
Unwind Dates:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement and ending no later than the Maturity Date.
|
First Unwind Date:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice.
|
Unwind Period:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement.
|
Cash Settlement Valuation Disruption:
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
|
Market Disruption Event:
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Valuation Period” after the word “material,” in the third line thereof.
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
Settlement:
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction.
|
Settlement Notice:
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 40th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “
Settlement Notice
”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “
Settlement Shares
”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement;
provided
that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (
provided
that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction).
|
Undesignated Shares:
|
For any Transaction, as of any date, the Number of Shares for such Transaction
minus
the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred.
|
Settlement Method Election:
|
For any Transaction, applicable;
provided
that:
|
Threshold Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50% of the Initial Forward Price for such Transaction.
|
Electing Party:
|
Counterparty
|
Settlement Method Election Date:
|
With respect to any Settlement of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement.
|
Default Settlement Method:
|
Physical Settlement
|
Physical Settlement:
|
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date
multiplied by
the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares.
|
Settlement Date:
|
For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement.
|
Net Share Settlement:
|
On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price.
|
Net Share Settlement Date:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle.
|
Net Share Settlement Amount:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by
the Settlement Price for such Settlement.
|
Forward Cash Settlement Amount:
|
Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall be equal to (i) the number of Settlement Shares for such Settlement
multiplied by
(ii) an amount equal to (A) the Settlement Price for such Settlement
minus
(B)
the Relevant Forward Price for such Settlement.
|
Relevant Forward Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement.
|
Settlement Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to such Settlement,
plus
a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD0.075.
|
10b-18 VWAP:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “HTA <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent.
For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could
|
Unwind Activities:
|
The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge position in respect of each Transaction shall be determined by Dealer in good faith and in a commercially reasonable manner. Without limiting the generality of the foregoing, in the event that Dealer concludes, in its reasonable discretion based on advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, so long as such policies or procedures are generally applicable in similar situations and applied to the relevant Transaction in a non-discriminatory manner) (a “
Regulatory Disruption
”), for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer may (but shall not be required to) notify Counterparty in writing that a Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, in which case Dealer shall, to the extent practicable in its good faith discretion, specify the nature of such Regulatory Disruption, and, for the avoidance of doubt, such Scheduled Trading Day shall not be an Unwind Date for such Transaction and such Regulatory Disruption shall be deemed to be a Market Disruption Event;
provided
that Dealer may exercise its right to suspend under this sentence only in good faith in relation to events or circumstances that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions.
|
Relevant Settlement Date:
|
For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be.
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction;
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares.
|
Potential Adjustment Events:
|
An Extraordinary Dividend shall not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction.
|
Extraordinary Dividend:
|
For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar quarter for such Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant quarter for such Transaction).
|
Regular Dividend Amount:
|
For each Transaction and for each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Forward Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction.
|
Method of Adjustment:
|
Calculation Agent Adjustment
|
Extraordinary Events:
|
The consequences that would otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply.
|
Tender Offer:
|
Applicable;
provided
that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%”.
|
Delisting:
|
In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
|
Change in Law:
|
Applicable;
provided
that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made in good faith and in a reasonable manner that is consistent with determinations made by the relevant party in respect of similar situations, and without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated,
|
Failure to Deliver:
|
Applicable with respect to a Transaction if Dealer is required to deliver Shares under such Transaction; otherwise, Not Applicable.
|
Hedging Disruption:
|
Applicable
|
Increased Cost of Hedging:
|
Applicable;
provided
that Section 12.9(b)(vi) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third and fourth sentences thereof.
|
Increased Cost of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable.
|
Initial Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Loss of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the second sentence thereof.
|
Maximum Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer;
provided
that, when making any determination or calculation as “Hedging Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Hedging Party were the Calculation Agent.
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer;
provided
that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Determining Party were the Calculation Agent.
|
Early Valuation:
|
For any Transaction, notwithstanding anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6 of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt, any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated with such Extraordinary Dividend.
|
ISDA Event:
|
(i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the public announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as reasonably determined by the Calculation Agent.
|
Amendment to Merger Event:
|
Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof.
|
Hedging Event:
|
In respect of any Transaction, the occurrence of any of the following events on or following the first Trading Day of the Forward Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a reasonably satisfactory Lending Party within the required time period as provided in Section 12.9(b)(iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) (A) an Increased Cost of Stock Borrow or (B) an Increased Cost of Hedging in connection with which, in the case of sub-clause (A) or (B), Counterparty does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) or Section 12.9(b)(vi)(A) of the Equity Definitions, as applicable, or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) or Section 12.9(b)(vi)(B) of the Equity Definitions, as applicable, or (iii) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price in a commercially reasonable manner to account for such Hedging Event and any reasonable and documented out-of-pocket costs or expenses incurred by Dealer as a result of such Hedging Event.
|
Remaining Shares:
|
For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day
minus
the Unwound Shares for such Transaction for such Unwind Period on such day).
|
Unwound Shares:
|
For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day.
|
Non-Reliance:
|
Applicable
|
Regarding Hedging Activities:
|
Applicable
|
Additional Acknowledgements:
|
Applicable
|
Transfer:
|
Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligation is guaranteed by Dealer or Dealer’s
|
Calculation Agent:
|
Dealer;
provided
that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives reasonably acceptable to Dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation, as the case may be;
provided
that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information.
|
Instructions:
|
To be provided by Counterparty
|
Dealer Payment/Delivery Instructions:
|
To be provided by Dealer
|
for Purpose of Giving Notice:
|
To be provided by Counterparty
|
for Purpose of Giving Notice:
|
MUFG Securities EMEA plc
|
3.
|
Effectiveness.
|
4.
|
Additional Mutual Representations and Warranties
. In addition to the representations and warranties in the Agreement, each party represents and warrants to the other party that it is an “eligible contract participant”, as defined in the U.S. Commodity Exchange Act (as amended), and an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act of 1933 (as amended) (the “
Securities Act
”), and is entering into each Transaction hereunder as principal and not for the benefit of any third party.
|
5.
|
Additional Representations and Warranties of Counterparty
. The representations and warranties of Counterparty set forth in Section 6 of the Equity Distribution Agreement are true and correct as of the date hereof, each “Forward Date” (as defined in the Equity Distribution Agreement), each Trade Date for any Transaction and each “Settlement Date” (as defined in the Equity Distribution Agreement) and are hereby deemed to be repeated to Dealer as if set forth herein. In addition to the representations and warranties in
|
6.
|
Additional Covenants of Counterparty.
|
7.
|
Termination on Bankruptcy
. The parties hereto agree that, notwithstanding anything to the contrary in the Agreement or the Equity Definitions, each Transaction constitutes a contract to issue a security of Counterparty as contemplated by Section 365(c)(2) of the Bankruptcy Code and that a Transaction and the obligations and rights of Counterparty and Dealer (except for any liability as a result of breach of any of the representations or warranties provided by Counterparty in Section 4 or Section 5 above) shall immediately terminate, without the necessity of any notice, payment (whether directly, by netting or otherwise) or other action by Counterparty or Dealer, if, on or prior to the final Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date, as the case may be, for such Transaction an Insolvency Filing occurs or any other proceeding commences with respect to Counterparty under the Bankruptcy Code (a “
Bankruptcy Termination Event
”).
|
8.
|
Additional Provisions.
|
9.
|
Indemnification
. Counterparty agrees to indemnify Dealer and its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such affiliate or person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities, joint and several, incurred by or asserted against such Indemnified Party arising out of, in connection with, or relating to, any breach of any covenant or representation made by Counterparty in this Master Confirmation, any Supplemental Confirmation or the Agreement and will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and reasonable expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising therefrom (whether or not such Indemnified Party is a party thereto), except to the extent determined in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from Dealer’s gross negligence, fraud, bad faith and/or willful misconduct or from a breach of any representation or covenant of Dealer contained in this Master Confirmation, any Supplemental Confirmation or the Agreement. The foregoing provisions shall survive any termination or completion of the Transactions.
|
10.
|
Beneficial Ownership
. Notwithstanding anything to the contrary in the Agreement, this Master Confirmation or any Supplemental Confirmation, in no event shall Dealer be entitled to receive, or be deemed to receive, or have the “right to acquire” (within the meaning of NYSE Rule 312.04(g)) Shares to the extent that, upon such receipt of such Shares, (i) the “beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Dealer, any of its affiliates’ business units subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer with respect to “beneficial ownership” of any Shares (collectively, “
Dealer Group
”) would be equal to or greater than the lesser of (x) 4.5% of the outstanding Shares (such condition, an “
Excess Section 13 Ownership Position
”), and (y) 4.9% of the outstanding Shares as of the Trade Date for any Transaction (such number of Shares, the “
Threshold Number of Shares
” and such condition, the “
Excess NYSE Ownership Position
”) or (ii) Dealer, Dealer Group or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “
Dealer Person
”) under Sections 3-601 through 3-603 of the Maryland Code (Corporations and Associations) or any state or federal bank holding company or banking laws, or any federal, state or local laws, regulations or regulatory orders applicable to ownership of Shares (“
Applicable Laws
”), would own, beneficially own, constructively own, control, hold the power to vote or otherwise meet a relevant definition of ownership in excess of a number of Shares equal to (x) the lesser of (A) the maximum number of Shares that would be permitted under Applicable Laws and (B) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received or that would give rise to any consequences under the constitutive documents of Counterparty (including, without limitation, Section 6.1 of the Charter) or any contract or agreement to which Counterparty is a party, in each case
minus
(y) 1% of the number of Shares outstanding on the date of determination (such condition described in clause (ii), an “
Excess Regulatory Ownership Position
”). If any delivery owed to Dealer under any Transaction is not made, in whole or in part, as a result of this provision, (i) Counterparty’s obligation to make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Dealer gives notice to Counterparty that such delivery would not result in (x) Dealer Group directly or indirectly so beneficially owning in excess of the lesser of (A) 4.5% of the outstanding Shares and (B) the Threshold Number of Shares or (y) the occurrence of an Excess Regulatory Ownership Position and (ii) if such delivery relates to a Physical Settlement of any Transaction, notwithstanding anything to the contrary herein, Dealer
|
11.
|
Non-Confidentiality
. The parties hereby agree that (i) effective from the date of commencement of discussions concerning the Transactions, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transactions and all materials of any kind, including opinions or other tax analyses, provided by Dealer and its affiliates to Counterparty relating to such tax treatment and tax structure;
provided
that the foregoing does not constitute an authorization to disclose the identity of Dealer or its affiliates, agents or advisers, or, except to the extent relating to such tax structure or tax treatment, any specific pricing terms or commercial or financial information, and (ii) Dealer does not assert any claim of proprietary ownership in respect of any description contained herein or therein relating to the use of any entities, plans or arrangements to give rise to a particular United States federal income tax treatment for Counterparty.
|
12.
|
Restricted Shares
. If Counterparty is unable to comply with the covenant of Counterparty contained in Section 6(a)(iii) above or Dealer otherwise determines in its reasonable opinion that any Shares to be delivered to Dealer by Counterparty under any Transaction may not be freely returned by Dealer to securities lenders as described in the covenant of Counterparty contained in Section 6(a)(iii) above, then delivery of any such Settlement Shares (the “
Unregistered Settlement Shares
”) shall be effected pursuant to Annex B hereto, unless waived by Dealer.
|
13.
|
Use of Shares
. Dealer acknowledges and agrees that, except in the case of a Private Placement Settlement, Dealer shall use any Shares delivered by Counterparty to Dealer on any Settlement Date to return to securities lenders to close out borrowings created by Dealer in connection with its hedging activities related to exposure under the Transactions or otherwise in compliance with applicable law.
|
14.
|
Rule 10b-18
. In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction, Dealer shall use commercially reasonable efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases and taking into account any applicable Securities and Exchange Commission no-action letters as appropriate, and subject to any delays between the execution and reporting of a trade of the Shares on the Exchange and other circumstances beyond Dealer’s control.
|
15.
|
Governing Law
. Notwithstanding anything to the contrary in the Agreement, the Agreement, this Master Confirmation, any Supplemental Confirmation and all matters arising in connection with the Agreement this Master Confirmation and any Supplemental Confirmation shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
|
16.
|
Set-Off
.
|
17.
|
Staggered Settlement
. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation to deliver any Shares or other securities on any date due (an “
Original Delivery Date
”) by making separate deliveries of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as the aggregate number of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number required to be delivered on such Original Delivery Date.
|
18.
|
Waiver of Trial by Jury
. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.
|
19.
|
Jurisdiction
. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS. NOTHING IN THIS PROVISION SHALL PROHIBIT A PARTY FROM BRINGING AN ACTION TO ENFORCE A MONEY JUDGMENT IN ANY OTHER JURISDICTION.
|
20.
|
Counterparts
. This Master Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Master Confirmation by signing and delivering one or more counterparts.
|
21.
|
Delivery of Cash
. For the avoidance of doubt, nothing in this Master Confirmation or any Supplemental Confirmation shall be interpreted as requiring Counterparty to deliver cash or other assets in respect of the settlement of the Transactions, except in circumstances where the required cash or other asset settlement thereof is permitted for classification of the contract as equity by ASC 815-40,
Derivatives and Hedging – Contracts in Entity’s Own Equity
, as in effect on the date hereof.
|
22.
|
Other Forward Transactions
. Counterparty agrees that (x) it shall not cause to occur, or permit to exist, any Forward Hedge Selling Period at any time there is (1) a “Forward Hedge Selling Period” (or equivalent term) relating to any other issuer forward sale or similar transaction (including, without limitation, any “Transaction” under (as and defined under) any substantially identical master forward confirmation) with any financial institution other than Dealer (an “
Other Forward Transaction
”) or (2) any “Unwind Period” (or equivalent term) hereunder or under any Other Forward Transaction, and (y) Counterparty shall not cause to occur, or permit to exist, an Unwind Period at any time there is an “Unwind Period” (or equivalent term) under any Other Forward Transaction or a “Forward Hedge Selling Period” (or equivalent term) relating to any Transaction or any Other Forward Transaction.
|
23.
|
2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol
. The parties agree that the terms of the 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this section (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into the Agreement”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to the Agreement (and each “Protocol Covered Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of this Agreement. For the purposes of this section:
|
24.
|
NFC Representation Protocol
. The parties agree that the provisions set out in the Attachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on March 8, 2013 (the “
NFC Representation Protocol
”) shall apply to the Agreement as if each party were an Adhering Party under the terms of the NFC Representation Protocol. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this section (and references to “the relevant Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into the Agreement”, (iii) references to “Covered Master Agreement” shall be deemed to be references to the Agreement (and each “Covered Master Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of the Agreement. Counterparty confirms that it enters into the Agreement as a party making the NFC Representation (as such term is defined in the NFC Representation Protocol). Counterparty shall promptly notify Dealer (with a copy to
MUSICMP.EMIREnquiries@int.sc.mufg.jp
) of any change to its status as a party making the NFC Representation.
|
25.
|
Contractual Recognition of Bail-In
.
|
(i)
|
a reduction, in full or in part, of the Bail-in Termination Amount; and/or
|
(ii)
|
a conversion of all, or a portion of, the Bail-in Termination Amount into shares or other instruments of ownership, in which case the Creditor Counterparty acknowledges and accepts that any such shares or other instruments of ownership may be issued to or conferred upon it as a result of the Bail-in Action.
|
(i)
|
the relevant resolution authority determines that the liabilities arising under the Agreement may be subject to the exercise of the U.K. Bail-in Power pursuant to the law of the third country governing such liabilities or a binding agreement concluded with such third country and in either case the U.K. Regulations have been amended to reflect such determination; and/or
|
a.
|
the U.K. Regulations have been repealed or amended in such a way as to remove the requirement for the acknowledgements and acceptances contained in paragraphs (1) and (2).
|
26.
|
Special Resolution Regime Termination Right
.
|
(i)
|
Upon the occurrence of a Crisis Prevention Measure, Crisis Management Measure or a Recognised Third-Country Resolution Action (each as defined in section 48Z(1) of the U.K. Banking Act 2009) in relation to Dealer, Counterparty shall be entitled to exercise termination rights under, or rights to enforce its rights, in connection with this Agreement, to the extent that it would be entitled to do so under the Special Resolution Regime (as defined in the U.K. Banking Act 2009) if this Agreement were governed by the laws of any part of the United Kingdom.
|
(ii)
|
For the purposes of clause (i) above, Section 48Z of the U.K. Banking Act 2009 is to be disregarded to the extent that it relates to a Crisis Prevention Measure other than the making of a "mandatory reduction instrument" by the Bank of England under section 6B of the U.K. Banking Act 2009.
|
By:
|
/s/ Kumar Prabhat
Name: Kumar Prabhat Title: Senior Manager |
By:
|
/s/ Robert Milligan
Name: Robert Milligan Title: Chief Financial Officer, Treasurer and Secretary |
Re:
|
Forward Sales of Class A Common Stock of Healthcare Trust of America, Inc.
|
(i)
|
the executed Agreements;
|
(ii)
|
the minutes of the meetings of, or actions by written consent or resolutions of, the Board of Directors of the Company, or any committee thereof, with respect to the transactions covered by this opinion letter;
|
(iii)
|
the executed certificates of the Company dated as of the date hereof (the “
Company Certificates
”);
|
(iv)
|
the executed certificates of the Operating Partnership dated as of the date hereof (such certificates together with the Company Certificates, the “
Officer’s Certificates
”);
|
(v)
|
the orders, judgments and decrees identified to us by the Company and the Operating Partnership and set forth in
Schedule A
attached hereto;
|
(vi)
|
the registration statement on Form S-3ASR, File No. 333-223172, filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on February 23, 2018 (excluding the documents incorporated therein by reference, the “
Registration Statement
”);
|
(vii)
|
the prospectus dated February 23, 2018 (the “
Base Prospectus
”);
|
(viii)
|
the prospectus supplement dated December 28, 2018 (the “
Prospectus Supplement
” and, together with the Base Prospectus, but excluding the documents incorporated therein by reference, the “
Prospectus
”); and
|
(ix)
|
the Company’s and Operating Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 20, 2018 (the “
2018 Annual Report on Form 10-K
”); the Company’s and Operating Partnership’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, filed with the Commission on April 30, 2018, August 3, 2018 and October 26, 2018, respectively; the Company’s and/or Operating Partnership’s Current Reports on Form 8-K filed with the Commission on February 15, 2018 (but only with respect to Item 8.01), March 16, 2018, April 23, 2018, April 27, 2018 (but only with respect to Item 8.01), June 8, 2018 (but only with respect to Item 8.01), July 10, 2018 (but only with respect to Item 5.07), August 2, 2018 (but only with respect to Item 8.01) and October 25, 2018 (but only with respect to Item 8.01); the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 23, 2018; and the description of the Class A Common Stock contained in the Company’s registration statement on Form 8-A, filed with the Commission on June 5, 2012 (collectively, the “
Incorporated Documents
”).
|
(a)
|
We have assumed that the Sales Agent and the Dealer have all the requisite power and authority, and have taken any and all necessary corporate, partnership or limited liability company action to execute and deliver the Agreements, as applicable. To the extent the Company’s or the Operating Partnership’s obligations depend on the enforceability of the Agreements against the Sales Agent
|
(b)
|
For purposes of our opinion in paragraph (1), we have relied solely on the review of certificates from public officials in the States of Arizona and New York, each dated as of December [●], 2018.
|
(c)
|
With regards to our opinion in paragraph (4), we express no opinion as to the indemnification or contribution sections of the Agreements.
|
(d)
|
For purposes of our opinions in paragraphs (4) and (5), we have assumed that neither the Company nor the Operating Partnership has taken, or in the future will take, any discretionary action (including a decision not to act) permitted by the Agreements that would cause the performance of the Agreements to (i) violate the RULPA or any U.S. federal, California or New York statute, rule or regulation, (ii) constitute a violation or breach of or default under any of the agreements, orders, judgments or decrees referred to in paragraph (4), or (iii) require any order, consent, permit or approval to be obtained from any U.S. federal, California or New York governmental authority. In addition, we do not express any opinion with respect to orders, consents, permits or approvals that may be necessary in connection with the business or operations of the Company or the Operating Partnership.
|
(e)
|
In addition, we have assumed the matters set forth in the opinions of Venable LLP set forth in their opinion letter dated the date hereof, a copy of which has been delivered to you.
|
(1)
|
The Company is qualified as a foreign corporation to do business in the States of Arizona and New York.
|
(2)
|
Assuming due authorization by all necessary corporate action, each of the Agreements have been duly executed and delivered by the Company.
|
(3)
|
Assuming due authorization by all necessary corporate action by the Company, each of the Agreements constitute the legally valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including without limitation fraudulent conveyance laws) and by general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
|
(4)
|
The execution and delivery of each of the Agreements by the Company and the performance of its obligations thereunder (including the sale and issuance of the Class A Shares) will not (i) violate the Company’s charter or bylaws, or the certificate of limited partnership or partnership agreement of the Operating Partnership, (ii) violate, breach, or result in a default under any of the material agreements to which the Company or the Operating Partnership is a party that are listed as exhibits to the 2017 Annual Report on Form 10-K or any Quarterly or Current Reports filed by the Company thereafter and prior to the date of this opinion letter (each such agreement, an “
Other Agreement
”), (iii) violate any current U.S. federal, California or New York statute, rule or regulation that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership or to transactions of the type contemplated by the Agreements, or (iv) breach or otherwise violate any existing obligation of or
|
(5)
|
No filing with, or consent, approval or permit of any U.S. federal, California or New York governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership is required on the part of the Company or the Operating Partnership for the execution and delivery of the Agreements by the Company and the Operating Partnership, as applicable, and the issuance and sale of the Class A Shares, except such as (i) are disclosed in the Registration Statement or the Prospectus, (ii) have been made or obtained by the Company or the Operating Partnership, (iii) may be required under applicable Blue Sky or state or foreign securities or takeover laws or (iv) may be required under rules and regulations of The New York Stock Exchange in connection with the issuance and sale of the Class A Shares.
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
MUFG Securities EMEA plc
|
Re:
|
Issuer Share Forward Sale Transaction
|
Date:
|
[_________], 20[__]
|
|
|
Trade Date:
|
[_______], 20[__]
|
Effective Date:
|
[_______], 20[__]
|
Maturity Date:
|
[_______], 20[__]
|
Number of Shares:
|
[________]
|
Initial Forward Price:
|
USD [____]
|
Spread:
|
[_.__]%
|
Volume-Weighted Hedge Price:
|
USD [____]
|
Threshold Price:
|
USD [____]
|
Initial Stock Loan Rate:
|
[___] basis points per annum
|
Maximum Stock Loan Rate:
|
[___] basis points per annum
|
Forward Price Reduction Date:
|
Forward Price Reduction Amount:
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
……..
|
……..
|
[______], 20[__]
|
USD[___]
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
USD[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
USD[___]
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Wells Fargo Bank, National Association
|
Re:
|
Issuer Share Forward Sale Transactions
|
Date:
|
December 28, 2018
|
|
|
Trade Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction.
|
Effective Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied.
|
Buyer:
|
Dealer
|
Seller:
|
Counterparty
|
Maturity Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Forward Placement Notice (as defined in the Equity Distribution Agreement) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day).
|
Shares:
|
The shares of Class A common stock, par value $0.01 per Share, of Counterparty (Ticker: “HTA”)
|
Number of Shares:
|
For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Forward Hedge Shares (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates.
|
Settlement Currency:
|
USD
|
Exchange:
|
The New York Stock Exchange
|
Related Exchange:
|
All Exchanges
|
Prepayment:
|
Not Applicable
|
Variable Obligation:
|
Not Applicable
|
Forward Price:
|
For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any calendar day thereafter, the product of the Forward Price for such Transaction on the immediately preceding calendar day and
|
Initial Forward Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1
minus
the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein.
|
Volume-Weighted Hedge Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the price per share of Forward Hedge Shares (as defined in the Equity Distribution Agreement) sold by Dealer (or its agent or affiliate) on each Trading Day of the Forward Hedge Selling Period for such Transaction, as determined by the Calculation Agent;
provided
that, solely for the purposes of calculating the Initial Forward Price, each such sale price (other than the sale price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction.
|
Daily Rate:
|
For any day, the Overnight Bank Rate
minus
the Spread.
|
Spread:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Overnight Bank Rate:
|
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page;
provided
that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears.
|
Forward Price Reduction Dates:
|
For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price Reduction Date” in the Forward Placement Notice for such Transaction.
|
Forward Price Reduction Amount:
|
For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.
|
Valuation Date:
|
For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
|
Unwind Dates:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement and ending no later than the Maturity Date.
|
First Unwind Date:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice.
|
Unwind Period:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement.
|
Cash Settlement Valuation Disruption:
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
|
Market Disruption Event:
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Valuation Period” after the word “material,” in the third line thereof.
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
Settlement:
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction.
|
Settlement Notice:
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 40th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “
Settlement Notice
”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “
Settlement Shares
”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement;
provided
that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (
provided
that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction).
|
Undesignated Shares:
|
For any Transaction, as of any date, the Number of Shares for such Transaction
minus
the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred.
|
Settlement Method Election:
|
For any Transaction, applicable;
provided
that:
|
Threshold Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50% of the Initial Forward Price for such Transaction.
|
Electing Party:
|
Counterparty
|
Settlement Method Election Date:
|
With respect to any Settlement of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement.
|
Default Settlement Method:
|
Physical Settlement
|
Physical Settlement:
|
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date
multiplied by
the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares.
|
Settlement Date:
|
For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement.
|
Net Share Settlement:
|
On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price.
|
Net Share Settlement Date:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle.
|
Net Share Settlement Amount:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by
the Settlement Price for such Settlement.
|
Forward Cash Settlement Amount:
|
Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall be equal to (i) the number of Settlement Shares for such Settlement
multiplied by
(ii) an amount equal to (A) the Settlement Price for such Settlement
minus
(B)
the Relevant Forward Price for such Settlement.
|
Relevant Forward Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement.
|
Settlement Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to such Settlement,
plus
a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD0.075.
|
10b-18 VWAP:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “HTA <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent.
For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could
|
Unwind Activities:
|
The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge position in respect of each Transaction shall be determined by Dealer in good faith and in a commercially reasonable manner. Without limiting the generality of the foregoing, in the event that Dealer concludes, in its reasonable discretion based on advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, so long as such policies or procedures are generally applicable in similar situations and applied to the relevant Transaction in a non-discriminatory manner) (a “
Regulatory Disruption
”), for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer may (but shall not be required to) notify Counterparty in writing that a Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, in which case Dealer shall, to the extent practicable in its good faith discretion, specify the nature of such Regulatory Disruption, and, for the avoidance of doubt, such Scheduled Trading Day shall not be an Unwind Date for such Transaction and such Regulatory Disruption shall be deemed to be a Market Disruption Event;
provided
that Dealer may exercise its right to suspend under this sentence only in good faith in relation to events or circumstances that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions.
|
Relevant Settlement Date:
|
For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be.
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction;
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares.
|
Potential Adjustment Events:
|
An Extraordinary Dividend shall not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction.
|
Extraordinary Dividend:
|
For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar quarter for such Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant quarter for such Transaction).
|
Regular Dividend Amount:
|
For each Transaction and for each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Forward Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction.
|
Method of Adjustment:
|
Calculation Agent Adjustment
|
Extraordinary Events:
|
The consequences that would otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply.
|
Tender Offer:
|
Applicable;
provided
that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%”.
|
Delisting:
|
In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
|
Change in Law:
|
Applicable;
provided
that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made in good faith and in a reasonable manner that is consistent with determinations made by the relevant party in respect of similar situations, and without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated,
|
Failure to Deliver:
|
Applicable with respect to a Transaction if Dealer is required to deliver Shares under such Transaction; otherwise, Not Applicable.
|
Hedging Disruption:
|
Applicable
|
Increased Cost of Hedging:
|
Applicable;
provided
that Section 12.9(b)(vi) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third and fourth sentences thereof.
|
Increased Cost of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable.
|
Initial Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Loss of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the second sentence thereof.
|
Maximum Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer;
provided
that, when making any determination or calculation as “Hedging Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Hedging Party were the Calculation Agent.
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer;
provided
that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Determining Party were the Calculation Agent.
|
Early Valuation:
|
For any Transaction, notwithstanding anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6 of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt, any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated with such Extraordinary Dividend.
|
ISDA Event:
|
(i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the public announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as reasonably determined by the Calculation Agent.
|
Amendment to Merger Event:
|
Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof.
|
Hedging Event:
|
In respect of any Transaction, the occurrence of any of the following events on or following the first Trading Day of the Forward Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a reasonably satisfactory Lending Party within the required time period as provided in Section 12.9(b)(iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) (A) an Increased Cost of Stock Borrow or (B) an Increased Cost of Hedging in connection with which, in the case of sub-clause (A) or (B), Counterparty does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) or Section 12.9(b)(vi)(A) of the Equity Definitions, as applicable, or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) or Section 12.9(b)(vi)(B) of the Equity Definitions, as applicable, or (iii) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price in a commercially reasonable manner to account for such Hedging Event and any reasonable and documented out-of-pocket costs or expenses incurred by Dealer as a result of such Hedging Event.
|
Remaining Shares:
|
For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day
minus
the Unwound Shares for such Transaction for such Unwind Period on such day).
|
Unwound Shares:
|
For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day.
|
Non-Reliance:
|
Applicable
|
Regarding Hedging Activities:
|
Applicable
|
Additional Acknowledgements:
|
Applicable
|
Transfer:
|
Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligation is guaranteed by Dealer or Dealer’s
|
Calculation Agent:
|
Dealer;
provided
that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives reasonably acceptable to Dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation, as the case may be;
provided
that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information.
|
Instructions:
|
To be provided by Counterparty
|
Dealer Payment/Delivery Instructions:
|
To be provided by Dealer
|
for Purpose of Giving Notice:
|
To be provided by Counterparty
|
for Purpose of Giving Notice:
|
Notwithstanding anything to the contrary in the Agreement, the Master Confirmation or any Supplemental Confirmation, all notices to Dealer in connection with any Transaction are effective only upon receipt of email message to CorporateDerivativeNotifications@wellsfargo.com.
|
By:
|
/s/ Thomas Yates
Name: Thomas Yates Title: Managing Director |
By:
|
/s/ Robert Milligan
Name: Robert Milligan Title: Chief Financial Officer, Treasurer and Secretary |
Re:
|
Forward Sales of Class A Common Stock of Healthcare Trust of America, Inc.
|
(i)
|
the executed Agreements;
|
(ii)
|
the minutes of the meetings of, or actions by written consent or resolutions of, the Board of Directors of the Company, or any committee thereof, with respect to the transactions covered by this opinion letter;
|
(iii)
|
the executed certificates of the Company dated as of the date hereof (the “
Company Certificates
”);
|
(iv)
|
the executed certificates of the Operating Partnership dated as of the date hereof (such certificates together with the Company Certificates, the “
Officer’s Certificates
”);
|
(v)
|
the orders, judgments and decrees identified to us by the Company and the Operating Partnership and set forth in
Schedule A
attached hereto;
|
(vi)
|
the registration statement on Form S-3ASR, File No. 333-223172, filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on February 23, 2018 (excluding the documents incorporated therein by reference, the “
Registration Statement
”);
|
(vii)
|
the prospectus dated February 23, 2018 (the “
Base Prospectus
”);
|
(viii)
|
the prospectus supplement dated December 28, 2018 (the “
Prospectus Supplement
” and, together with the Base Prospectus, but excluding the documents incorporated therein by reference, the “
Prospectus
”); and
|
(ix)
|
the Company’s and Operating Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 20, 2018 (the “
2018 Annual Report on Form 10-K
”); the Company’s and Operating Partnership’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, filed with the Commission on April 30, 2018, August 3, 2018 and October 26, 2018, respectively; the Company’s and/or Operating Partnership’s Current Reports on Form 8-K filed with the Commission on February 15, 2018 (but only with respect to Item 8.01), March 16, 2018, April 23, 2018, April 27, 2018 (but only with respect to Item 8.01), June 8, 2018 (but only with respect to Item 8.01), July 10, 2018 (but only with respect to Item 5.07), August 2, 2018 (but only with respect to Item 8.01) and October 25, 2018 (but only with respect to Item 8.01); the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 23, 2018; and the description of the Class A Common Stock contained in the Company’s registration statement on Form 8-A, filed with the Commission on June 5, 2012 (collectively, the “
Incorporated Documents
”).
|
(a)
|
We have assumed that the Sales Agent and the Dealer have all the requisite power and authority, and have taken any and all necessary corporate, partnership or limited liability company action to
|
(b)
|
For purposes of our opinion in paragraph (1), we have relied solely on the review of certificates from public officials in the States of Arizona and New York, each dated as of December [●], 2018.
|
(c)
|
With regards to our opinion in paragraph (4), we express no opinion as to the indemnification or contribution sections of the Agreements.
|
(d)
|
For purposes of our opinions in paragraphs (4) and (5), we have assumed that neither the Company nor the Operating Partnership has taken, or in the future will take, any discretionary action (including a decision not to act) permitted by the Agreements that would cause the performance of the Agreements to (i) violate the RULPA or any U.S. federal, California or New York statute, rule or regulation, (ii) constitute a violation or breach of or default under any of the agreements, orders, judgments or decrees referred to in paragraph (4), or (iii) require any order, consent, permit or approval to be obtained from any U.S. federal, California or New York governmental authority. In addition, we do not express any opinion with respect to orders, consents, permits or approvals that may be necessary in connection with the business or operations of the Company or the Operating Partnership.
|
(e)
|
In addition, we have assumed the matters set forth in the opinions of Venable LLP set forth in their opinion letter dated the date hereof, a copy of which has been delivered to you.
|
(1)
|
The Company is qualified as a foreign corporation to do business in the States of Arizona and New York.
|
(2)
|
Assuming due authorization by all necessary corporate action, each of the Agreements have been duly executed and delivered by the Company.
|
(3)
|
Assuming due authorization by all necessary corporate action by the Company, each of the Agreements constitute the legally valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including without limitation fraudulent conveyance laws) and by general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
|
(4)
|
The execution and delivery of each of the Agreements by the Company and the performance of its obligations thereunder (including the sale and issuance of the Class A Shares) will not (i) violate the Company’s charter or bylaws, or the certificate of limited partnership or partnership agreement of the Operating Partnership, (ii) violate, breach, or result in a default under any of the material agreements to which the Company or the Operating Partnership is a party that are listed as exhibits to the 2017 Annual Report on Form 10-K or any Quarterly or Current Reports filed by the Company thereafter and prior to the date of this opinion letter (each such agreement, an “
Other Agreement
”), (iii) violate any current U.S. federal, California or New York statute, rule or
|
(5)
|
No filing with, or consent, approval or permit of any U.S. federal, California or New York governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership is required on the part of the Company or the Operating Partnership for the execution and delivery of the Agreements by the Company and the Operating Partnership, as applicable, and the issuance and sale of the Class A Shares, except such as (i) are disclosed in the Registration Statement or the Prospectus, (ii) have been made or obtained by the Company or the Operating Partnership, (iii) may be required under applicable Blue Sky or state or foreign securities or takeover laws or (iv) may be required under rules and regulations of The New York Stock Exchange in connection with the issuance and sale of the Class A Shares.
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Wells Fargo Bank, National Association
|
Re:
|
Issuer Share Forward Sale Transaction
|
Date:
|
[_________], 20[__]
|
|
|
Trade Date:
|
[_______], 20[__]
|
Effective Date:
|
[_______], 20[__]
|
Maturity Date:
|
[_______], 20[__]
|
Number of Shares:
|
[________]
|
Initial Forward Price:
|
USD [____]
|
Spread:
|
[_.__]%
|
Volume-Weighted Hedge Price:
|
USD [____]
|
Threshold Price:
|
USD [____]
|
Initial Stock Loan Rate:
|
[___] basis points per annum
|
Maximum Stock Loan Rate:
|
[___] basis points per annum
|
Forward Price Reduction Date:
|
Forward Price Reduction Amount:
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
……..
|
……..
|
[______], 20[__]
|
USD[___]
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
USD[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
USD[___]
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Bank of America, N.A.
|
Re:
|
Issuer Share Forward Sale Transactions
|
Date:
|
December 28, 2018
|
Trade Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction.
|
Effective Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied.
|
Buyer:
|
Dealer
|
Seller:
|
Counterparty
|
Maturity Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Forward Placement Notice (as defined in the Equity Distribution Agreement) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day).
|
Shares:
|
The shares of Class A common stock, par value $0.01 per Share, of Counterparty (Ticker: “HTA”)
|
Number of Shares:
|
For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Forward Hedge Shares (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates.
|
Settlement Currency:
|
USD
|
Exchange:
|
The New York Stock Exchange
|
Related Exchange:
|
All Exchanges
|
Prepayment:
|
Not Applicable
|
Variable Obligation:
|
Not Applicable
|
Forward Price:
|
For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any calendar day thereafter, the product of the Forward Price for such Transaction on the immediately preceding calendar day and
|
Initial Forward Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1
minus
the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein.
|
Volume-Weighted Hedge Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the price per share of Forward Hedge Shares (as defined in the Equity Distribution Agreement) sold by Dealer (or its agent or affiliate) on each Trading Day of the Forward Hedge Selling Period for such Transaction, as determined by the Calculation Agent;
provided
that, solely for the purposes of calculating the Initial Forward Price, each such sale price (other than the sale price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction.
|
Daily Rate:
|
For any day, the Overnight Bank Rate
minus
the Spread.
|
Spread:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Overnight Bank Rate:
|
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page;
provided
that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears.
|
Forward Price Reduction Dates:
|
For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price Reduction Date” in the Forward Placement Notice for such Transaction.
|
Forward Price Reduction Amount:
|
For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.
|
Valuation Date:
|
For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
|
Unwind Dates:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement and ending no later than the Maturity Date.
|
First Unwind Date:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice.
|
Unwind Period:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement.
|
Cash Settlement Valuation Disruption:
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
|
Market Disruption Event:
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Valuation Period” after the word “material,” in the third line thereof.
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
Settlement:
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction.
|
Settlement Notice:
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 40th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “
Settlement Notice
”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “
Settlement Shares
”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement;
provided
that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (
provided
that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction).
|
Undesignated Shares:
|
For any Transaction, as of any date, the Number of Shares for such Transaction
minus
the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred.
|
Settlement Method Election:
|
For any Transaction, applicable;
provided
that:
|
Threshold Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50% of the Initial Forward Price for such Transaction.
|
Electing Party:
|
Counterparty
|
Settlement Method Election Date:
|
With respect to any Settlement of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement.
|
Default Settlement Method:
|
Physical Settlement
|
Physical Settlement:
|
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date
multiplied by
the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares.
|
Settlement Date:
|
For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement.
|
Net Share Settlement:
|
On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price.
|
Net Share Settlement Date:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle.
|
Net Share Settlement Amount:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by
the Settlement Price for such Settlement.
|
Forward Cash Settlement Amount:
|
Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement
|
Relevant Forward Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement.
|
Settlement Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to such Settlement,
plus
a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD 0.075.
|
10b-18 VWAP:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “HTA <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent.
For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act (such trades, “
Rule 10b-18 eligible transactions
”).
|
Unwind Activities:
|
The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its
|
Relevant Settlement Date:
|
For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be.
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction;
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares.
|
Potential Adjustment Events:
|
An Extraordinary Dividend shall not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction.
|
Extraordinary Dividend:
|
For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly
|
Regular Dividend Amount:
|
For each Transaction and for each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Forward Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction.
|
Method of Adjustment:
|
Calculation Agent Adjustment
|
Extraordinary Events:
|
The consequences that would otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply.
|
Tender Offer:
|
Applicable;
provided
that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%”.
|
Delisting:
|
In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
|
Change in Law:
|
Applicable;
provided
that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made in good faith and in a reasonable manner that is consistent with determinations made by the relevant party in respect of similar situations, and without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (B) Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by adding the words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” after the word “regulation” in the second line thereof and (ii) by replacing the words “the
|
Failure to Deliver:
|
Applicable with respect to a Transaction if Dealer is required to deliver Shares under such Transaction; otherwise, Not Applicable.
|
Hedging Disruption:
|
Applicable
|
Increased Cost of Hedging:
|
Applicable;
provided
that Section 12.9(b)(vi) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third and fourth sentences thereof.
|
Increased Cost of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable.
|
Initial Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Loss of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the second sentence thereof.
|
Maximum Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer;
provided
that, when making any determination or calculation as “Hedging Party,” Dealer
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer;
provided
that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Determining Party were the Calculation Agent.
|
Early Valuation:
|
For any Transaction, notwithstanding anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6 of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt, any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated with such Extraordinary Dividend.
|
ISDA Event:
|
(i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the public announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as reasonably determined by the Calculation Agent.
|
Amendment to Merger Event:
|
Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof.
|
Hedging Event:
|
In respect of any Transaction, the occurrence of any of the following events on or following the first Trading Day of the Forward Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a reasonably satisfactory Lending Party within the required time period as provided in Section 12.9(b)(iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) (A) an Increased Cost of Stock Borrow or (B) an Increased Cost of Hedging in connection with which, in the case of sub-clause (A) or (B), Counterparty does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) or Section 12.9(b)(vi)(A) of the Equity Definitions, as applicable, or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) or Section 12.9(b)(vi)(B) of the Equity Definitions, as applicable, or (iii) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price in a commercially reasonable manner to account for such Hedging Event and any reasonable and documented out-of-pocket costs or expenses incurred by Dealer as a result of such Hedging Event.
|
Remaining Shares:
|
For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day
minus
the Unwound Shares for such Transaction for such Unwind Period on such day).
|
Unwound Shares:
|
For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day.
|
Non-Reliance:
|
Applicable
|
Regarding Hedging Activities:
|
Applicable
|
Additional Acknowledgements:
|
Applicable
|
Transfer:
|
Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligation is guaranteed by Dealer or Dealer’s ultimate parent entity (a “
Transferee
”) without the consent of Counterparty;
provided
that (x) no Event of Default or Potential Event of Default shall have occurred with respect to either party solely as a result of such transfer and assignment, (y) prior written notice of such
|
Calculation Agent:
|
Dealer;
provided
that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives reasonably acceptable to Dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation, as the case may be;
provided
that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information.
|
Instructions:
|
To be provided by Counterparty
|
Dealer Payment/Delivery Instructions:
|
To be provided by Dealer
|
for Purpose of Giving Notice:
|
To be provided by Counterparty
|
for Purpose of Giving Notice:
|
Bank of America, N.A.
|
By:
|
/s/ Jake Mendelsohn
Name: Jake Mendelsohn Title: Managing Director |
By:
|
/s/ Robert Milligan
Name: Robert Milligan Title: Chief Financial Officer, Treasurer and Secretary |
Re:
|
Forward Sales of Class A Common Stock of Healthcare Trust of America, Inc.
|
(i)
|
the executed Agreements;
|
(ii)
|
the minutes of the meetings of, or actions by written consent or resolutions of, the Board of Directors of the Company, or any committee thereof, with respect to the transactions covered by this opinion letter;
|
(iii)
|
the executed certificates of the Company dated as of the date hereof (the “
Company Certificates
”);
|
(iv)
|
the executed certificates of the Operating Partnership dated as of the date hereof (such certificates together with the Company Certificates, the “
Officer’s Certificates
”);
|
(v)
|
the orders, judgments and decrees identified to us by the Company and the Operating Partnership and set forth in
Schedule A
attached hereto;
|
(vi)
|
the registration statement on Form S-3ASR, File No. 333-223172, filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on February 23, 2018 (excluding the documents incorporated therein by reference, the “
Registration Statement
”);
|
(vii)
|
the prospectus dated February 23, 2018 (the “
Base Prospectus
”);
|
(viii)
|
the prospectus supplement dated December 28, 2018 (the “
Prospectus Supplement
” and, together with the Base Prospectus, but excluding the documents incorporated therein by reference, the “
Prospectus
”); and
|
(ix)
|
the Company’s and Operating Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 20, 2018 (the “
2018 Annual Report on Form 10-K
”); the Company’s and Operating Partnership’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, filed with the Commission on April 30, 2018, August 3, 2018 and October 26, 2018, respectively; the Company’s and/or Operating Partnership’s Current Reports on Form 8-K filed with the Commission on February 15, 2018 (but only with respect to Item 8.01), March 16, 2018, April 23, 2018, April 27, 2018 (but only with respect to Item 8.01), June 8, 2018 (but only with respect to Item 8.01), July 10, 2018 (but only with respect to Item 5.07), August 2, 2018 (but only with respect to Item 8.01) and October 25, 2018 (but only with respect to Item 8.01); the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 23, 2018; and the description of the Class A Common Stock contained in the Company’s registration statement on Form 8-A, filed with the Commission on June 5, 2012 (collectively, the “
Incorporated Documents
”).
|
(a)
|
We have assumed that the Sales Agent and the Dealer have all the requisite power and authority, and have taken any and all necessary corporate, partnership or limited liability company action to
|
(b)
|
For purposes of our opinion in paragraph (1), we have relied solely on the review of certificates from public officials in the States of Arizona and New York, each dated as of December [●], 2018.
|
(c)
|
With regards to our opinion in paragraph (4), we express no opinion as to the indemnification or contribution sections of the Agreements.
|
(d)
|
For purposes of our opinions in paragraphs (4) and (5), we have assumed that neither the Company nor the Operating Partnership has taken, or in the future will take, any discretionary action (including a decision not to act) permitted by the Agreements that would cause the performance of the Agreements to (i) violate the RULPA or any U.S. federal, California or New York statute, rule or regulation, (ii) constitute a violation or breach of or default under any of the agreements, orders, judgments or decrees referred to in paragraph (4), or (iii) require any order, consent, permit or approval to be obtained from any U.S. federal, California or New York governmental authority. In addition, we do not express any opinion with respect to orders, consents, permits or approvals that may be necessary in connection with the business or operations of the Company or the Operating Partnership.
|
(e)
|
In addition, we have assumed the matters set forth in the opinions of Venable LLP set forth in their opinion letter dated the date hereof, a copy of which has been delivered to you.
|
(1)
|
The Company is qualified as a foreign corporation to do business in the States of Arizona and New York.
|
(2)
|
Assuming due authorization by all necessary corporate action, each of the Agreements have been duly executed and delivered by the Company.
|
(3)
|
Assuming due authorization by all necessary corporate action by the Company, each of the Agreements constitute the legally valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including without limitation fraudulent conveyance laws) and by general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
|
(4)
|
The execution and delivery of each of the Agreements by the Company and the performance of its obligations thereunder (including the sale and issuance of the Class A Shares) will not (i) violate the Company’s charter or bylaws, or the certificate of limited partnership or partnership agreement of the Operating Partnership, (ii) violate, breach, or result in a default under any of the material agreements to which the Company or the Operating Partnership is a party that are listed as exhibits to the 2017 Annual Report on Form 10-K or any Quarterly or Current Reports filed by the Company thereafter and prior to the date of this opinion letter (each such agreement, an “
Other Agreement
”), (iii) violate any current U.S. federal, California or New York statute, rule or
|
(5)
|
No filing with, or consent, approval or permit of any U.S. federal, California or New York governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership is required on the part of the Company or the Operating Partnership for the execution and delivery of the Agreements by the Company and the Operating Partnership, as applicable, and the issuance and sale of the Class A Shares, except such as (i) are disclosed in the Registration Statement or the Prospectus, (ii) have been made or obtained by the Company or the Operating Partnership, (iii) may be required under applicable Blue Sky or state or foreign securities or takeover laws or (iv) may be required under rules and regulations of The New York Stock Exchange in connection with the issuance and sale of the Class A Shares.
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Bank of America, N.A.
|
Re:
|
Issuer Share Forward Sale Transaction
|
Date:
|
[_________], 20[__]
|
|
|
Trade Date:
|
[_______], 20[__]
|
Effective Date:
|
[_______], 20[__]
|
Maturity Date:
|
[_______], 20[__]
|
Number of Shares:
|
[________]
|
Initial Forward Price:
|
USD [____]
|
Spread:
|
[_.__]%
|
Volume-Weighted Hedge Price:
|
USD [____]
|
Threshold Price:
|
USD [____]
|
Initial Stock Loan Rate:
|
[___] basis points per annum
|
Maximum Stock Loan Rate:
|
[___] basis points per annum
|
Forward Price Reduction Date:
|
Forward Price Reduction Amount:
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
……..
|
……..
|
[______], 20[__]
|
USD[___]
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
USD[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
USD[___]
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Jefferies LLC
|
Re:
|
Issuer Share Forward Sale Transactions
|
Date:
|
December 28, 2018
|
|
|
Trade Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction.
|
Effective Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied.
|
Buyer:
|
Dealer
|
Seller:
|
Counterparty
|
Maturity Date:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Forward Placement Notice (as defined in the Equity Distribution Agreement) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day).
|
Shares:
|
The shares of Class A common stock, par value $0.01 per Share, of Counterparty (Ticker: “HTA”)
|
Number of Shares:
|
For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Forward Hedge Shares (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates.
|
Settlement Currency:
|
USD
|
Exchange:
|
The New York Stock Exchange
|
Related Exchange:
|
All Exchanges
|
Prepayment:
|
Not Applicable
|
Variable Obligation:
|
Not Applicable
|
Forward Price:
|
For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any calendar day thereafter, the product of the Forward Price for such Transaction on the immediately preceding calendar day and
|
Initial Forward Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1
minus
the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein.
|
Volume-Weighted Hedge Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the price per share of Forward Hedge Shares (as defined in the Equity Distribution Agreement) sold by Dealer (or its agent or affiliate) on each Trading Day of the Forward Hedge Selling Period for such Transaction, as determined by the Calculation Agent;
provided
that, solely for the purposes of calculating the Initial Forward Price, each such sale price (other than the sale price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction.
|
Daily Rate:
|
For any day, the Overnight Bank Rate
minus
the Spread.
|
Spread:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Overnight Bank Rate:
|
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page;
provided
that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears.
|
Forward Price Reduction Dates:
|
For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price Reduction Date” in the Forward Placement Notice for such Transaction.
|
Forward Price Reduction Amount:
|
For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.
|
Valuation Date:
|
For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
|
Unwind Dates:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement and ending no later than the Maturity Date.
|
First Unwind Date:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice.
|
Unwind Period:
|
For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement.
|
Cash Settlement Valuation Disruption:
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
|
Market Disruption Event:
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Valuation Period” after the word “material,” in the third line thereof.
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
Settlement:
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction.
|
Settlement Notice:
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 40th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “
Settlement Notice
”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “
Settlement Shares
”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement;
provided
that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (
provided
that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction).
|
Undesignated Shares:
|
For any Transaction, as of any date, the Number of Shares for such Transaction
minus
the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred.
|
Settlement Method Election:
|
For any Transaction, applicable;
provided
that:
|
Threshold Price:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50% of the Initial Forward Price for such Transaction.
|
Electing Party:
|
Counterparty
|
Settlement Method Election Date:
|
With respect to any Settlement of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement.
|
Default Settlement Method:
|
Physical Settlement
|
Physical Settlement:
|
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date
multiplied by
the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares.
|
Settlement Date:
|
For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement.
|
Net Share Settlement:
|
On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price.
|
Net Share Settlement Date:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle.
|
Net Share Settlement Amount:
|
For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by
the Settlement Price for such Settlement.
|
Forward Cash Settlement Amount:
|
Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement
|
Relevant Forward Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement.
|
Settlement Price:
|
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to such Settlement,
plus
a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD0.075.
|
10b-18 VWAP:
|
For any Exchange Business Day, as determined by the Calculation Agent based on the New York 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “HTA <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent.
For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act (such trades, “
Rule 10b-18 eligible transactions
”).
|
Unwind Activities:
|
The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its
|
Relevant Settlement Date:
|
For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be.
|
Other Applicable Provisions:
|
To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction;
provided
that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares.
|
Potential Adjustment Events:
|
An Extraordinary Dividend shall not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction.
|
Extraordinary Dividend:
|
For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly
|
Regular Dividend Amount:
|
For each Transaction and for each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Forward Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction.
|
Method of Adjustment:
|
Calculation Agent Adjustment
|
Extraordinary Events:
|
The consequences that would otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply.
|
Tender Offer:
|
Applicable;
provided
that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%”.
|
Delisting:
|
In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange.
|
Change in Law:
|
Applicable;
provided
that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made in good faith and in a reasonable manner that is consistent with determinations made by the relevant party in respect of similar situations, and without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (B) Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by adding the words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” after the word “regulation” in the second line thereof and (ii) by replacing the words “the
|
Failure to Deliver:
|
Applicable with respect to a Transaction if Dealer is required to deliver Shares under such Transaction; otherwise, Not Applicable.
|
Hedging Disruption:
|
Applicable
|
Increased Cost of Hedging:
|
Applicable;
provided
that Section 12.9(b)(vi) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third and fourth sentences thereof.
|
Increased Cost of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding the word “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable.
|
Initial Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Loss of Stock Borrow:
|
Applicable;
provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the second sentence thereof.
|
Maximum Stock Loan Rate:
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction.
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer;
provided
that, when making any determination or calculation as “Hedging Party,” Dealer
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer;
provided
that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if the Determining Party were the Calculation Agent.
|
Early Valuation:
|
For any Transaction, notwithstanding anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6 of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt, any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated with such Extraordinary Dividend.
|
ISDA Event:
|
(i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the public announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as reasonably determined by the Calculation Agent.
|
Amendment to Merger Event:
|
Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof.
|
Hedging Event:
|
In respect of any Transaction, the occurrence of any of the following events on or following the first Trading Day of the Forward Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a reasonably satisfactory Lending Party within the required time period as provided in Section 12.9(b)(iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) (A) an Increased Cost of Stock Borrow or (B) an Increased Cost of Hedging in connection with which, in the case of sub-clause (A) or (B), Counterparty does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) or Section 12.9(b)(vi)(A) of the Equity Definitions, as applicable, or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) or Section 12.9(b)(vi)(B) of the Equity Definitions, as applicable, or (iii) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price in a commercially reasonable manner to account for such Hedging Event and any reasonable and documented out-of-pocket costs or expenses incurred by Dealer as a result of such Hedging Event.
|
Remaining Shares:
|
For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day
minus
the Unwound Shares for such Transaction for such Unwind Period on such day).
|
Unwound Shares:
|
For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day.
|
Non-Reliance:
|
Applicable
|
Regarding Hedging Activities:
|
Applicable
|
Additional Acknowledgements:
|
Applicable
|
Transfer:
|
Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligation is guaranteed by Dealer or Dealer’s parent entity (a “
Transferee
”) without the consent of Counterparty;
provided
that (x) no Event of Default or Potential Event of Default shall have occurred with respect to either party solely as a result of such transfer and assignment, (y) prior written notice of such assignment and transfer
|
Calculation Agent:
|
Dealer;
provided
that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives reasonably acceptable to Dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation, as the case may be;
provided
that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information.
|
Instructions:
|
To be provided by Counterparty
|
Dealer Payment/Delivery Instructions:
|
To be provided by Dealer
|
for Purpose of Giving Notice:
|
To be provided by Counterparty
|
By:
|
/s/ Colyer Curtis
Name: Colyer Curtis Title: Managing Director, ECM |
By:
|
/s/ Robert Milligan
Name: Robert Milligan Title: Chief Financial Officer, Treasurer and Secretary |
Re:
|
Forward Sales of Class A Common Stock of Healthcare Trust of America, Inc.
|
(i)
|
the executed Agreements;
|
(ii)
|
the minutes of the meetings of, or actions by written consent or resolutions of, the Board of Directors of the Company, or any committee thereof, with respect to the transactions covered by this opinion letter;
|
(iii)
|
the executed certificates of the Company dated as of the date hereof (the “
Company Certificates
”);
|
(iv)
|
the executed certificates of the Operating Partnership dated as of the date hereof (such certificates together with the Company Certificates, the “
Officer’s Certificates
”);
|
(v)
|
the orders, judgments and decrees identified to us by the Company and the Operating Partnership and set forth in
Schedule A
attached hereto;
|
(vi)
|
the registration statement on Form S-3ASR, File No. 333-223172, filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on February 23, 2018 (excluding the documents incorporated therein by reference, the “
Registration Statement
”);
|
(vii)
|
the prospectus dated February 23, 2018 (the “
Base Prospectus
”);
|
(viii)
|
the prospectus supplement dated December 28, 2018 (the “
Prospectus Supplement
” and, together with the Base Prospectus, but excluding the documents incorporated therein by reference, the “
Prospectus
”); and
|
(ix)
|
the Company’s and Operating Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 20, 2018 (the “
2018 Annual Report on Form 10-K
”); the Company’s and Operating Partnership’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, filed with the Commission on April 30, 2018, August 3, 2018 and October 26, 2018, respectively; the Company’s and/or Operating Partnership’s Current Reports on Form 8-K filed with the Commission on February 15, 2018 (but only with respect to Item 8.01), March 16, 2018, April 23, 2018, April 27, 2018 (but only with respect to Item 8.01), June 8, 2018 (but only with respect to Item 8.01), July 10, 2018 (but only with respect to Item 5.07), August 2, 2018 (but only with respect to Item 8.01) and October 25, 2018 (but only with respect to Item 8.01); the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 23, 2018; and the description of the Class A Common Stock contained in the Company’s registration statement on Form 8-A, filed with the Commission on June 5, 2012 (collectively, the “
Incorporated Documents
”).
|
(a)
|
We have assumed that the Sales Agent and the Dealer have all the requisite power and authority, and have taken any and all necessary corporate, partnership or limited liability company action to
|
(b)
|
For purposes of our opinion in paragraph (1), we have relied solely on the review of certificates from public officials in the States of Arizona and New York, each dated as of December [●], 2018.
|
(c)
|
With regards to our opinion in paragraph (4), we express no opinion as to the indemnification or contribution sections of the Agreements.
|
(d)
|
For purposes of our opinions in paragraphs (4) and (5), we have assumed that neither the Company nor the Operating Partnership has taken, or in the future will take, any discretionary action (including a decision not to act) permitted by the Agreements that would cause the performance of the Agreements to (i) violate the RULPA or any U.S. federal, California or New York statute, rule or regulation, (ii) constitute a violation or breach of or default under any of the agreements, orders, judgments or decrees referred to in paragraph (4), or (iii) require any order, consent, permit or approval to be obtained from any U.S. federal, California or New York governmental authority. In addition, we do not express any opinion with respect to orders, consents, permits or approvals that may be necessary in connection with the business or operations of the Company or the Operating Partnership.
|
(e)
|
In addition, we have assumed the matters set forth in the opinions of Venable LLP set forth in their opinion letter dated the date hereof, a copy of which has been delivered to you.
|
(1)
|
The Company is qualified as a foreign corporation to do business in the States of Arizona and New York.
|
(2)
|
Assuming due authorization by all necessary corporate action, each of the Agreements have been duly executed and delivered by the Company.
|
(3)
|
Assuming due authorization by all necessary corporate action by the Company, each of the Agreements constitute the legally valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including without limitation fraudulent conveyance laws) and by general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
|
(4)
|
The execution and delivery of each of the Agreements by the Company and the performance of its obligations thereunder (including the sale and issuance of the Class A Shares) will not (i) violate the Company’s charter or bylaws, or the certificate of limited partnership or partnership agreement of the Operating Partnership, (ii) violate, breach, or result in a default under any of the material agreements to which the Company or the Operating Partnership is a party that are listed as exhibits to the 2017 Annual Report on Form 10-K or any Quarterly or Current Reports filed by the Company thereafter and prior to the date of this opinion letter (each such agreement, an “
Other Agreement
”), (iii) violate any current U.S. federal, California or New York statute, rule or
|
(5)
|
No filing with, or consent, approval or permit of any U.S. federal, California or New York governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company and the Operating Partnership is required on the part of the Company or the Operating Partnership for the execution and delivery of the Agreements by the Company and the Operating Partnership, as applicable, and the issuance and sale of the Class A Shares, except such as (i) are disclosed in the Registration Statement or the Prospectus, (ii) have been made or obtained by the Company or the Operating Partnership, (iii) may be required under applicable Blue Sky or state or foreign securities or takeover laws or (iv) may be required under rules and regulations of The New York Stock Exchange in connection with the issuance and sale of the Class A Shares.
|
To:
|
Healthcare Trust of America, Inc.
|
From:
|
Jefferies LLC
|
Re:
|
Issuer Share Forward Sale Transaction
|
Date:
|
[_________], 20[__]
|
|
|
Trade Date:
|
[_______], 20[__]
|
Effective Date:
|
[_______], 20[__]
|
Maturity Date:
|
[_______], 20[__]
|
Number of Shares:
|
[________]
|
Initial Forward Price:
|
USD [____]
|
Spread:
|
[_.__]%
|
Volume-Weighted Hedge Price:
|
USD [____]
|
Threshold Price:
|
USD [____]
|
Initial Stock Loan Rate:
|
[___] basis points per annum
|
Maximum Stock Loan Rate:
|
[___] basis points per annum
|
Forward Price Reduction Date:
|
Forward Price Reduction Amount:
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
[______], 20[__]
|
USD[___]
|
……..
|
……..
|
[______], 20[__]
|
USD[___]
|
For any calendar quarter ending on or prior to [December 31, 20[__]]:
|
USD[___]
|
For any calendar quarter ending after [December 31, 20[__]]:
|
USD[___]
|