Exhibit 1.1
BEHRINGER HARVARD OPPORTUNITY
REIT II, INC.
UP TO 125,000,000 SHARES OF
COMMON STOCK
SELECTED DEALER
AGREEMENT
May 1, 2008
SELECTED DEALER AGREEMENT
Ameriprise Financial
Services, Inc.
570
Ameriprise Financial Center
Minneapolis, MN 55474
Ladies and Gentlemen:
Behringer Harvard Opportunity REIT
II, Inc., a Maryland corporation (the “ Company ”), Behringer Securities
LP, a Texas limited partnership (the “ Dealer Manager ”), Behringer
Harvard Opportunity Advisors II LP, a Texas limited partnership
(the “ Advisor
”), and Behringer Harvard Holdings, LLC, a Delaware limited
liability company (the “ Sponsor ”)
hereby confirms its agreement with Ameriprise Financial
Services, Inc., a Delaware corporation (“ Ameriprise ”), as
follows:
1. Introduction
. This Selected Dealer Agreement (the
“Agreement”) sets forth the understandings and
agreements whereby Ameriprise will offer and sell on a best efforts
basis for the account of the Company a maximum of 125,000,000
shares of its common stock (the “ Common Stock ”) par value $.0001
per share (each a “ Share ,” and collectively, the
“ Shares ”)
(including 25,000,000 Shares to be offered pursuant to the
Company’s Distribution Reinvestment Plan (the “
DRIP ”) registered
pursuant to the Registration Statement (as defined below) at the
per share price set forth in the Registration Statement from time
to time (subject to certain volume discounts) (the
“Offering”). The Shares are more fully described
in the Registration Statement referred to below.
Ameriprise is hereby invited to act as a
selected dealer for the Offering, subject to the other terms and
conditions set forth below.
2. Representations
and Warranties of the Company, the Dealer Manager, the Advisor and
the Sponsor .
The
Company, the Dealer Manager, the Advisor and the Sponsor
(collectively, the “ Issuer
Entities ”), jointly and severally, represent,
warrant and covenant with Ameriprise for Ameriprise’s benefit
that, as of the date hereof and at all times during the term of
this Agreement:
(a)
Registration Statement and Prospectus . The Company
has filed with the Securities and Exchange Commission (the “
Commission ”) an
effective registration statement on Form S-11 (File
No. 333-140887), for the registration of up to $1,237,500,000
in Shares under the Securities Act of 1933, as amended (the “
Securities Act ”) and
the regulations thereunder (the “ Regulations ”). The
registration statement, as amended, and the prospectus, as amended
or supplemented, on file with the Commission at the Effective Date
(as defined below) of the registration statement (including
financial statements, exhibits and all other documents related
thereto filed as a part thereof or incorporated therein), and any
registration statement filed under Rule 462(b) of the
Securities Act, are respectively hereinafter referred to as the
“ Registration
Statement ” and the “ Prospectus ,” except that if the
Registration Statement is amended by a post-effective amendment,
the term “Registration Statement” shall, from and after
the declaration of effectiveness of such post-effective amendment,
refer to the Registration Statement as so amended and the term
“Prospectus” shall refer to the Prospectus as so
amended or supplemented to date, and if any Prospectus filed by the
Company pursuant to Rule 424(b) or 424(c) of the
Regulations shall differ from the Prospectus on file at the time
the Registration Statement or any post-effective amendment shall
become effective, the term “Prospectus” shall refer to
the Prospectus filed pursuant to either of such
Rules from and after the date on which it
shall have been filed with the Commission. Further, if a
separate registration statement is filed and becomes effective with
respect solely to the DRIP (a “ DRIP Registration Statement ”),
the term “Registration Statement” shall refer to such
DRIP Registration Statement from and after the declaration of
effectiveness of such DRIP Registration Statement, as such
registration statement may be amended or supplemented from time to
time. If a separate prospectus is filed and becomes effective
with respect solely to the DRIP (a “ DRIP Prospectus ”), the term
“Prospectus” shall refer to such DRIP Prospectus from
and after the declaration of effectiveness of such DRIP Prospectus,
as such prospectus may be amended or supplemented from time to
time.
(b)
Compliance with the Securities Act . The
Registration Statement has been prepared and filed by the Company
and has been declared effective by the Commission and in the states
as indicated in the Blue Sky Memorandum (defined in
Section 4(d) herein), as updated from time to time
pursuant to the terms of Section 4(d). Neither the
Commission nor any such state securities authority has issued any
order preventing or suspending the use of any Prospectus filed with
the Registration Statement or any amendments or supplements thereto
and no proceedings for that purpose have been instituted, or to the
Company’s knowledge, are threatened or contemplated by the
Commission or by the states securities authorities. At the
time the Registration Statement became effective (the “
Effective Date ”) and
at the time that any post-effective amendments thereto or any
additional registration statement filed under
Rule 462(b) of the Securities Act becomes effective, the
Registration Statement or any amendment thereto (1) complied,
or will comply, as to form in all material respects with the
requirements of the Securities Act and the Regulations and
(2) did not or will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein not misleading. When the Prospectus or
any amendment or supplement thereto is filed with the Commission
pursuant to Rule 424(b) or 424(c) of the Regulations
and at all times subsequent thereto through the date on which the
Offering is terminated (“ Termination Date ”), the
Prospectus will comply in all material respects with the
requirements of the Securities Act and the Regulations, and will
not include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. Any Prospectus
delivered to Ameriprise will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(c)
The
Company . The Company has been duly incorporated
and validly exists as a corporation in good standing under the laws
of the State of Maryland with full power and authority to conduct
the business in which it is engaged as described in the Prospectus,
including without limitation to acquire properties as more fully
described in the Prospectus, including land and buildings, as well
as properties upon which properties are to be constructed for the
Company or to be owned by the Company (the “ Properties ”) or make loans, or
other permitted investments as referred to in the Prospectus.
The Company and each of its subsidiaries is duly qualified to do
business as a foreign corporation, limited liability company or
limited partnership, as applicable, and is in good standing in each
other jurisdiction in which it owns or leases property of a nature,
or transacts business of a type that would make such qualification
necessary except where the failure to be so qualified or in good
standing could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. The term “
Material Adverse Effect
” means a material adverse effect on, or material adverse
change in, the general affairs, business, prospects, properties,
operations, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of
business.
(d)
The
Shares . The Shares, when issued, will be duly and
validly issued, and upon payment therefor as described in the
Registration Statement and Prospectus, will be fully paid and
non-assessable and will conform in all material respects to the
description thereof contained in the Prospectus; no holder thereof
will be subject to personal liability for the obligations of the
Company solely by reason of being
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such a holder; such Shares are not subject to
the preemptive rights of any stockholder of the Company; and all
corporate action required to be taken for the authorization,
issuance and sale of such Shares has been validly and sufficiently
taken. All shares of the Company’s issued and
outstanding capital stock have been duly authorized and validly
issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company were issued in
violation of the preemptive or other similar rights of any
stockholder of the Company.
(e)
Capitalization . The authorized capital stock of
the Company conforms in all material respects to the description
thereof contained in the Prospectus under the caption
“Description of Shares.” Except as disclosed in
the Prospectus: no shares of Common Stock have been or are to be
reserved for any purpose; there are no outstanding securities
convertible into or exchangeable for any shares of Common Stock;
and there are no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or subscribe for shares of
Common Stock or any other securities of the Company.
(f)
Violations . No Issuer Entity or any respective
subsidiary thereof is (i) in violation of its charter or
bylaws, its partnership agreement, declaration of trust or trust
agreement, or limited liability company agreement (or other similar
agreement), as the case may be; (ii) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which such Issuer Entity is a party or by which any
of them may be bound or to which any of the respective properties
or assets of such Issuer Entity is subject (collectively, “
Agreements and Instruments
”); or (iii) in violation of any law, order,
rule or regulation, writ, injunction or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
property, except in the case of clauses (ii) and (iii), where
such conflict, breach, violation or default would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect. The execution, delivery and performance by
each Issuer Entity, as applicable, of this Agreement, that certain
Dealer Manager Agreement between the Dealer Manager and the Company
(the “ Dealer Manager
Agreement ”), the Selected Dealer Agreements between
the Company, the Dealer Manager and, with the exception of
Ameriprise, each of the selected dealers soliciting subscriptions
for shares of the Company’s common stock pursuant to the
Offering (collectively, the “ Selected Dealer Agreements ”) and
the Advisory Agreement between the Company and the Advisor (the
“ Advisory Agreement
”), and the consummation of the transactions contemplated
herein and therein (including the issuance and sale of the Shares
and the use of the proceeds from the sale of the Shares as
described in the Prospectus under the caption “ Estimated Use of Proceeds ”) and compliance
by the Company and the Advisor with its obligations hereunder and
thereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, default or Repayment Event (as defined below) under any
of the Agreements and Instruments, or result in the creation or
imposition of any Lien (as defined below) upon any property or
assets of any Issuer Entity or any respective subsidiary thereof
(except for such conflicts, breaches, defaults or Repayments Events
or Liens that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect) nor will
such action result in any violation of the provisions of the
charter or bylaws (or similar document) of any Issuer Entity or any
respective subsidiary thereof; or any applicable law, rule,
regulation, or governmental or court judgment, order, writ or
decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Issuer Entities
or any of their properties , except for such violations that
would not reasonably be expected to have a Material Adverse
Effect. As used herein, a “ Repayment Event ” means any event
or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
an Issuer Entity or any respective subsidiary thereof.
“ Lien ” means
any mortgage, deed of trust, lien, pledge, encumbrance, charge or
security interest in or on any asset.
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(g)
Financial Statements . The consolidated financial
statements of the Company and the financial statements of each
entity acquired by the Company (each, an “ Acquired Entity ”, including the
schedules and notes thereto, filed as part of the Registration
Statement and those included in the Prospectus present fairly in
all material respects the financial position of the Company, its
consolidated subsidiaries and each Acquired Entity, as applicable,
as of the date indicated and the results of its operations,
stockholders’ equity and cash flows of the Company, and its
consolidated subsidiaries and each Acquired Entity, as applicable,
for the periods specified; said financial statements have been
prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis or, if such entity is a
foreign entity, such other accounting principles applicable to such
foreign entity, (except as may be expressly stated in the related
notes thereto) and comply with the requirements of Regulation S-X
promulgated by the Commission. Deloitte & Touche
LLP, whose report is filed with the Commission as a part of the
Registration Statement, is, with respect to the Company and its
subsidiaries, independent accountants as required by the Securities
Act and the Regulations and have been registered with the Public
Company Accounting Oversight Board. The selected financial data and
the summary financial information included in the Prospectus
present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with
the Commission’s rules and guidelines with respect to
pro forma financial statements and have been properly compiled on
the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and
circumstances referred to therein. All disclosures contained in the
Registration Statement or the Prospectus, or incorporated by
reference therein, regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Securities Exchange Act of 1934 (the “ Exchange Act ”) and Item 10 of
Regulation S-K of the Securities Act, to the extent
applicable.
(h)
Prior Performance Tables . The prior performance
tables of the Company’s affiliates and other entities,
including the schedules and notes thereto, filed as part of the
Registration Statement and those included in the Prospectus under
the heading(s) “Prior Performance Tables” (the
“ Prior Performance
Tables ”) present fairly in all material respects the
financial information required by the Commission’s Industry
Guide 5. Except as disclosed in the Prospectus, the Prior
Performance Tables have been prepared in conformity with U.S.
generally accepted accounting principles applied on a consistent
basis to the extent required by the Commission’s Industry
Guide 5 and comply with the requirements of Regulation S-X
promulgated by the Commission, to the extent applicable. All
disclosures in the Prior Performance Tables regarding
“non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K of
the Securities Act, to the extent applicable.
(i)
No Subsequent Material Events . Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise
be stated in or contemplated by the Registration Statement and the
Prospectus, (a) there has not been any Material Adverse
Effect, whether or not arising in the ordinary course of business,
(b) there have not been any material transactions entered into
by the Company except in the ordinary course of business,
(c) there has not been any material increase in the long-term
indebtedness of the Company and (d) except for regular cash
distributions on the Common Stock, there has been no distribution
of any kind declared, paid or made by the Company on any class of
its capital stock.
(j)
Investment Company Act . The Company is not, will
not become by virtue of the transactions contemplated by this
Agreement and the application of the net proceeds therefrom, and
does
5
not
intend to conduct its business so as to be, an “investment
company” as that term is defined in the Investment Company
Act of 1940, as amended and the rules and regulations
thereunder, and it will exercise reasonable diligence to ensure
that it does not become an “investment company” within
the meaning of the Investment Company Act of 1940.
(k)
Authorization of Agreements . This Agreement, the
Dealer Manager Agreement, the Selected Dealer Agreements and the
Advisory Agreement between the Company, the Dealer Manager and the
Advisor, as applicable, have been duly and validly authorized,
executed and delivered by the Company, the Dealer Manager and the
Advisor, as applicable, and constitute valid, binding and
enforceable agreements of the Company, the Dealer Manager and the
Advisor, as applicable , except to the extent that (i)
enforceability may be limited by (a) the effect of bankruptcy,
insolvency or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally; or (b)
the effect of general principles or equity; or (ii) the
enforceability of the indemnity and/or contribution provisions
contained in the Dealer Manager Agreement, the Selected Dealer
Agreements, the Advisory Agreement and Section 8 of this
Agreement may be limited under applicable securities
laws.
(l)
The Advisor . The Advisor has been duly formed and
validly exists as a limited partnership in good standing under the
laws of the State of Texas with full power and authority to conduct
the business in which it is engaged as described in the
Prospectus. The Advisor is duly qualified to do business as a
foreign limited partnership and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except where the failure to be so qualified or in good
standing could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
(m)
The
Dealer Manager . The Dealer Manager has been duly
formed and validly exists as a limited partnership in good standing
under the laws of the State of Texas with full power and authority
to conduct the business in which it is engaged as described in the
Prospectus. The Dealer Manager is duly qualified to do
business as a foreign limited partnership and is in good standing
in each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except where the failure to be so
qualified or in good standing could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse
Effect.
(n)
Description of Agreements . The Company is not a
party to or bound by any contract or other instrument of a
character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described and filed as required.
(o)
Qualification as a Real Estate Investment Trust .
The Company intends to satisfy the requirements of the Internal
Revenue Code of 1986 as amended (the “ Code ”) for qualification and
taxation of the Company as a real estate investment trust.
Commencing with its taxable year ending December 31, 2008, the
Company will be organized in conformity with the requirements for
qualification as a real estate investment trust under the Code and
its proposed method of operation as described in the Prospectus
will enable it to meet the requirements for qualification and
taxation as a real estate investment trust under the Code
commencing with its taxable year ending December 31,
2008.
(p)
Gramm-Leach-Bliley Act and USA Patriot Act . The
Company complies in all material respects with applicable privacy
provisions of the Gramm-Leach-Bliley Act and applicable provisions
of the USA Patriot Act.
(q)
Sales Material . All advertising and supplemental
sales literature prepared or approved by the Company or any of its
affiliates (whether designated solely for broker-dealer use or
otherwise) to be
6
used or delivered by the Company or any of its
affiliates or Ameriprise in connection with the Offering of the
Shares will not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein, in
light of the circumstances under which they were made and when read
in conjunction with the Prospectus, not misleading.
Furthermore, all such advertising and supplemental sales literature
has, or will have, received all required regulatory approval, which
may include but is not limited to, the Commission, The Financial
Industry Regulatory Authority, Inc. (“ FINRA
”) and state securities agencies, as applicable, prior to
use. Any required consent and authorization has been obtained
for the use of any trademark or service mark in any sales
literature or advertising delivered by the Company to Ameriprise or
approved by the Company for use by Ameriprise and, to the
Company’s knowledge, its use does not constitute the
unlicensed use of intellectual property.
(r)
Good Standing of Subsidiaries . Each
“significant subsidiary” of the Company (as such term
is defined in Rule 1-02 of Regulation S-X) and each other
entity in which the Company holds a direct or indirect ownership
interest that is material to the Company (each a “
Subsidiary ” and,
collectively, the “ Subsidiaries ”) has been duly
organized or formed and is validly existing as a corporation,
partnership, limited liability company or similar entity in good
standing under the laws of the jurisdiction of its incorporation,
has power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect.
Except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding equity securities of each such
Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any Lien, claim or equity
other than such Liens, claims or equities that, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect. None of the outstanding shares of capital
stock of any Subsidiary was issued in violation of the preemptive
or similar rights of any stockholder of such Subsidiary. The
only direct subsidiaries of the Company as of the date of the
Registration Statement or the most recent amendment to the
Registration Statement, as applicable, are the subsidiaries listed
on Exhibit 21 to the Registration Statement or such amendment
to the Registration Statement.
(s)
No Pending Action . Except as disclosed in the
Registration Statement, there is no action, suit or proceeding
pending, or, to the knowledge of the Company, threatened or
contemplated before or by any arbitrator, court or other government
body, domestic or foreign, against or affecting any Issuer Entity
or any respective subsidiary thereof which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which would reasonably be expected to result in a
Material Adverse Effect, or which would reasonably be expected to
materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated by this
Agreement. The aggregate of all pending legal or governmental
proceedings to which any Issuer Entity or any respective subsidiary
thereof is a party or of which any of their respective properties
or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect or materially adversely affect
other properties or assets of any Issuer Entity or any respective
subsidiary thereof.
(t)
Possession of Intellectual Property . The Company
and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or
other intellectual property (collectively, “ Intellectual Property ”)
necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of
7
any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any
of its subsidiaries therein, and which infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse
Effect.
(u)
Absence of Further Requirements . No filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
of its obligations under this Agreement, the Dealer Manager
Agreement, the Selected Dealer Agreements and the Advisory
Agreement, in connection with the offering, issuance or sale of the
Shares or the consummation of the other transactions contemplated
by this Agreement, the Dealer Manager Agreement, the Selected
Dealer Agreements and the Advisory Agreement, except for such as
are specifically set forth in this Agreement and such as have been
already made or obtained under the Securities Act, the Exchange
Act, or FINRA or as may be required under the securities laws of
the 50 states and the District of Columbia.
(v)
Possession of Licenses and Permits . The Company
and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “
Governmental Licenses
”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them (except such Governmental Licenses, the failure of
which to possess, would not reasonably be expected to have a
Material Adverse Effect), and the Company and its subsidiaries are
in compliance in all material respects with the terms and
conditions of all such Governmental Licenses. All of the
Governmental Licenses are valid and in full force and effect; and
neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses.
(w)
Partnership Agreements . Each of the partnership
agreements, declarations of trust or trust agreements, limited
liability company agreements (or other similar agreements) and, if
applicable, joint venture agreements to which the Company or any of
its subsidiaries is a party has been duly authorized, executed and
delivered by the Company or the relevant subsidiary, as the case
may be, and the execution, delivery and performance of such
agreements did not, at the time of execution and delivery, and does
not constitute a breach of or default under the charter or bylaws,
partnership agreement, declaration of trust or trust agreement, or
limited liability company agreement (or other similar agreement),
as the case may be, of the Company or any of its subsidiaries or
any of the Agreements and Instruments or any law, administrative
regulation or administrative or court order or decree .
and constitutes the valid and binding agreement of the
Company or such subsidiary, as the case may be, enforceable in
accordance with its terms, except to the extent that
(i) enforceability thereof may be limited by (a) the
effect of bankruptcy, insolvency or other similar laws now or
hereafter in effect relating to or affecting creditors’
rights generally or (b) the effect of general principles of
equity, or (ii) the enforceability of the indemnity and/or
contribution provisions contained in the partnership agreements,
declarations of trust or trust agreements, limited liability
company agreements (or similar agreements) and Section 8 of
this Agreement may be limited under applicable securities
laws.
(x)
Properties . Except as otherwise disclosed in the
Prospectus: (i) the Company and its subsidiaries have good and
insurable or good, valid and , with respect to U.S.
properties, insurable title (either in fee simple or pursuant to a
valid leasehold interest) to all properties and assets described in
the Prospectus as being owned or leased, as the case may be, by
them and to all properties reflected in the Company’s most
recent consolidated financial statements included in the
Prospectus, and neither the Company nor any of its subsidiaries has
received notice of any claim that has been or may be asserted by
anyone adverse to the rights of the Company or any subsidiary with
respect to any such properties or assets (or any such lease) or
affecting or questioning the rights of the Company or any such
subsidiary to the continued ownership, lease, possession or
occupancy of such property or assets , except for
such
8
claims that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; (ii) there are no Liens, claims or restrictions on or
affecting the properties and assets of the Company or any of its
subsidiaries which would reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; (iii) no
person or entity, including, without limitation, any tenant under
any of the leases pursuant to which the Company or any of its
subsidiaries leases (as lessor) any of its properties (whether
directly or indirectly through other partnerships, limited
liability companies, business trusts, joint ventures or otherwise)
has an option or right of first refusal or any other right to
purchase any of such properties, except for such options, rights of
first refusal or other rights to purchase which, individually or in
the aggregate, are not material with respect to the Company and its
subsidiaries taken as a whole; (iv) to the Company’s
knowledge, each of the properties of the Company or any of its
subsidiaries has access to public rights of way, either directly or
through easements (insured easements with respect to U.S.
properties), except where the failure to have such access would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; (v) to the Company’s
knowledge, each of the properties of the Company or any of its
subsidiaries is served by all public utilities necessary for the
current operations on such property in sufficient quantities for
such operations, except where the failure to have such public
utilities could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; (vi) to the
knowledge of the Company, each of the properties of the Company or
any of its subsidiaries complies with all applicable codes and
zoning and subdivision laws and regulations, except for such
failures to comply which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; (vii) all of the leases under which the Company or any
of its subsidiaries holds or uses any real property or improvements
or any equipment relating to such real property or improvements are
in full force and effect, except where the failure to be in full
force and effect could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries is in default in
the payment of any amounts due under any such leases or in any
other default thereunder and the Company knows of no event which,
with the passage of time or the giving of notice or both, could
constitute a default under any such lease, except such defaults
that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; (viii) to the
knowledge of the Company, there is no pending or threatened
condemnation, zoning change, or other proceeding or action that
could in any manner affect the size of, use of, improvements on,
construction on or access to the properties of the Company or any
of its subsidiaries, except such proceedings or actions that,
individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect; and (ix) neither the
Company nor any of its subsidiaries nor, to the knowledge of the
Company, any lessee of any of the real property or improvements of
the Company or any of its subsidiaries is in default in the payment
of any amounts due or in any other default under any of the leases
pursuant to which the Company or any of its subsidiaries leases (as
lessor) any of its real property or improvements (whether directly
or indirectly through partnerships, limited liability companies,
joint ventures or otherwise), and the Company knows of no event
which, with the passage of time or the giving of notice or both,
would constitute such a default under any of such leases, except in
each case such defaults as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(y)
Insurance . The Company and/or its subsidiaries
have title insurance on all U.S. real property and improvements
described in the Prospectus as being owned or leased under a ground
lease, as the case may be, by them and to all U.S. real property
and improvements reflected in the Company’s most recent
consolidated financial statements included in the Prospectus in an
amount at least equal to the original purchase price paid to the
sellers of such property, except as otherwise disclosed in the
Prospectus, and the Company or one of its subsidiaries is entitled
to all benefits of the insured thereunder. With respect to
all non-U.S. real property described in the Prospectus as being
owned or leased by the Company’s subsidiaries, each such
subsidiary has received a title opinion or title certificate or
other customary evidence of title assurance, as appropriate for the
respective jurisdiction, showing good and indefeasible title to
such properties in fee simple or valid leasehold estate or its
respective equivalent, as
9
the
case may be, vested in the applicable subsidiary. Each
property described in the Prospectus is insured by extended
coverage hazard and casualty insurance carried by either the tenant
or the Company and its subsidiaries in amounts and on such terms as
are customarily carried by owners or lessors of properties similar
to those owned by the Company and its subsidiaries (in the markets
in which the Company’s and subsidiaries’ respective
properties are located), and either the tenant or the Company and
its subsidiaries carry comprehensive general liability insurance
and such other insurance as is customarily carried by owners or
lessors of properties similar to those owned by the Company and its
subsidiaries in amounts and on such terms as are customarily
carried by owners or lessors of properties similar to those owned
by the Company and its subsidiaries (in the markets in which the
Company’s and its subsidiaries’ respective properties
are located) and the Company or one of its subsidiaries is named as
an additional insured and/or loss payee, as applicable, on all
policies (except workers’ compensation) required under the
leases for such properties.
(z)
Environmental Matters . Except as otherwise
disclosed in the Prospectus: (i) all real property and
improvements owned or leased by the Company or any of its
subsidiaries, including, without limitation, the Environment (as
defined below) associated with such real property and improvements,
is free of any Contaminant (as defined below) in violation of
applicable Environmental Laws (as defined below)except for such
violations that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(ii) neither the Company, nor any of its subsidiaries has
caused or suffered to exist or occur any Release (as defined below)
of any Contaminant into the Environment in violation of any
applicable Environmental Law that would reasonably be expected to
have a Material Adverse Effect or could result in a violation of
any applicable Environmental Laws , except for such
violations that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(iii) neither the Company nor any of its subsidiaries is aware
of any notice from any governmental body claiming any violation of
any Environmental Laws or requiring or calling for any work,
repairs, construction, alterations, removal or remedial action or
installation by the Company or any of its subsidiaries on or in
connection with such real property or improvements, whether in
connection with the presence of asbestos-containing materials or
mold in such properties or otherwise, except for any such work,
repairs, construction, alterations, removal or remedial action or
installation, if required or called for, which would not result in
the incurrence of liabilities by the Company, which, individually
or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, nor is the Company aware of any
information which may serve as the basis for any such notice that
would, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; (iv) neither the Company nor
any of its subsidiaries has caused or suffered to exist or occur
any environmental condition on any of the properties or
improvements of the Company or any of its subsidiaries that could
reasonably be expected to give rise to the imposition of any Lien
under any Environmental Laws except such Liens which, individually
or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect; and (v) to the Company’s
knowledge, no real property or improvements owned or leased by the
Company or any of its subsidiaries is being used or has been used
for manufacturing or for any other operations that involve or
involved the use, handling, transportation, storage, treatment or
disposal of any Contaminant, where such operations require or
required permits or are or were otherwise regulated pursuant to the
Environmental Laws and where such permits have not been or were not
obtained or such regulations are not being or were not complied
with, except in all instances where any failure to obtain a permit
or comply with any regulation would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. “ Contaminant ” means any
pollutant, hazardous substance, toxic substance, hazardous waste,
special waste, petroleum or petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, lead, pesticides
or regulated radioactive materials or any constituent of any such
substance or waste, as identified or regulated under any
Environmental Law. “ Environmental Laws ” means the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601 et seq. , the Resource Conservation and
Recovery Act, 42 U.S.C. 6901, et seq. , the Clean Air Act,
42 U.S.C. 7401, et seq. , the Clean Water Act, 33 U.S.C.
1251, et seq. , the Toxic Substances Control Act,
15
10
U.S.C. 2601, et seq. , the Occupational
Safety and Health Act, 29 U.S.C. 651, et seq. , and all
other federal, state and local laws, ordinances, regulations,
rules, orders, decisions and permits, which are directed at the
protection of human health or the Environment. “
Environment ” means
any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings, structures, and
ambient air. “ Release ” means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of any
Contaminant into the Environment, including, without limitation,
the abandonment or discard of barrels, containers, tanks or other
receptacles containing or previously containing any Contaminant or
any release, emission or discharge as those terms are defined or
used in any applicable Environmental Law.
(aa)
Registration
Rights . There are no persons, other than the
Company, with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the Securities Act, or
included in the Offering contemplated hereby.
(bb)
Finders’
Fees . Neither the Company nor any affiliate
thereof has received or is entitled to receive, directly or
indirectly, a finder’s fee or similar fee from any person
other than that as described in the Prospectus in connection with
the acquisition, or the commitment for the acquisition, of the
Properties by the Company.
(cc)
Taxes . The Company and each of its subsidiaries
has filed all material federal, state and foreign income tax
returns and all other material tax returns which have been required
to be filed on or before the due date thereof (taking into account
all extensions of time to file) and all such tax returns are
correct and complete in all material respects. The Company
has paid or provided for the payment of all taxes reflected on its
tax returns and all assessments received by the Company and each of
its subsidiaries to the extent that such taxes or assessments have
become due, except where the Company is contesting such assessments
in good faith and except for such taxes and assessments of
immaterial amounts, the failure of which to pay would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. There are no audits, deficiencies or
assessments pending against the Company or its subsidiaries
relating to income taxes, except where the Company is contesting
such audit, deficiency or assessments in good faith.
(dd)
Internal
Controls . The Company maintains a system of
internal control over financial reporting ( as such term is defined
in Rule 13a-15(f) of the Exchange Act) that complies with
the requirements of the Exchange Act and that has been designed by
the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over
financial reporting is effective as of August 31, 2007 and the
Company is not aware of any material weaknesses in its internal
control over financial reporting. Since the date of the
latest audited financial statements included or incorporated by
reference in the Registration Statement, there has been no change
in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
(ee)
Disclosure
Controls and Procedures . The Company maintains
disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial
officer by others within those entities; and such disclosure
controls and procedures are effective as of August
31, 2007.
(ff)
Compliance with the Sarbanes-Oxley Act . There is
and has been no failure on the part of
11
the
Company or any of the Company’s directors or officers, in
their capacities as such, to comply in all material respects with
any applicable provision of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and
906 related to certifications.
(gg)
No Fiduciary
Duty . Each Issuer Entity acknowledges and agrees
that Ameriprise is acting solely in the capacity of an arm’s
length contractual counterparty to it with respect to the Offering
of the Shares (including in connection with determining the terms
of the Offering) and not as a financial advisor or a fiduciary to,
or an agent of, such Issuer Entity or any other person.
Additionally, Ameriprise is not advising the Issuer Entities or any
other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Issuer Entities
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and
Ameriprise shall have no responsibility or liability to the Issuer
Entities with respect thereto. Any review by Ameriprise of
the Issuer Entities, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for
the benefit of Ameriprise and shall not be on behalf of the Issuer
Entities.
(hh)
Stock
Options . With respect to the stock options (the “
Stock Options ”)
granted pursuant to the stock-based compensation plans of the
Company and its subsidiaries (the “ Company Stock Plans ”), if any,
(i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code so qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “ Grant Date ”) by all necessary
corporate action, including, as applicable, approval by the board
of directors of the Company (or a duly constituted and authorized
committee th
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