EXHIBIT 1.1
BEHRINGER HARVARD OPPORTUNITY
REIT I, INC.
Up to 54,587,065 Shares of Common
Stock/$541,870,650
SELECTED DEALER
AGREEMENT
January 31, 2007
Ameriprise Financial Services,
Inc.
570 Ameriprise Financial Center
Minneapolis, MN 55474
Ladies and Gentlemen:
Behringer Harvard Opportunity REIT
I, Inc., a Maryland corporation (the “Company”), has
registered for public sale a maximum of 54,587,065 shares of its
common stock (the “Common Stock”), $0.0001 par value
per share (each a “Share,” and collectively, the
“Shares”) to be offered and sold to the public (the
“Offering”) for an aggregate purchase price of
$541,870,650 (46,587,065 Shares to be offered to the public for
$10.00 per share and 8,000,000 Shares to be offered pursuant to the
Company’s distribution reinvestment plan (the
“DRIP”) for $9.50 per share). The Company may
reallocate Shares between the primary offering and the DRIP.
There shall be a minimum purchase by any one person of 200 Shares
(except as otherwise indicated in the Prospectus (defined
below)). In connection therewith, the Company hereby agrees
with you, Ameriprise Financial Services, Inc.
(“Ameriprise”), as follows:
Ameriprise is hereby invited to act
as a selected dealer to solicit subscriptions for the Offering,
subject to the other terms and conditions set forth
below.
1.
Representations and Warranties of the Company, Behringer
Securities LP, as the dealer manager (the “Dealer
Manager”) and Behringer Harvard Opportunity
Advisors I LP (the “Advisor”)
.
The Company, the Dealer Manager and
the Advisor, as applicable, 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 period (the
“Effective Term”) from the date hereof to the
Termination Date (as defined below) subject to the filing of
required disclosures or other documentation within permitted time
frames:
1.1
A registration statement on Form S-11 (File No. 333-120847)
has been prepared by the Company in accordance with applicable
requirements of the Securities Act of 1933, as amended (the
“Securities Act”), and the applicable rules and
regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “SEC”)
promulgated thereunder, for the registration of the Shares.
Such registration statement, which includes a prospectus, was filed
with the SEC on November 30, 2004. The Company has
prepared and filed such amendments thereto, if any, and such
amended prospectus, if any, as may have been required to the date
hereof, and will file such additional amendments thereto and such
amended or supplemented prospectuses as may hereafter be
required. Copies of such
registration
statement and each amendment thereto have been or will be delivered
to Ameriprise. The registration statement, as amended, and
the prospectus, as amended or supplemented, on file with the SEC 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 amended
or supplemented to date, and if the Prospectus filed by the Company
pursuant to Rule 424(b) or 424(c) of the Rules and 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 Rule 424(b) or 424(c) of the
Rules and Regulations from and after the date on which it shall
have been filed with the SEC. 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. 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.
1.2
The Company has been duly incorporated and is validly existing as a
corporation and 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 is duly qualified to do business as a
foreign corporation 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 on the financial
condition, stockholders’ equity, results of operation,
business affairs or business prospects of the Company and its
subsidiaries taken as a whole (a “Material Adverse
Effect”).
1.3
The Registration Statement has been prepared and filed by the
Company and has been declared effective by the SEC. Neither
the SEC nor any state securities authority has issued any order
preventing or suspending the use of the Prospectus and no
proceedings for that purpose have been instituted, or to the
Company’s knowledge, are threatened or contemplated by the
SEC 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, in all material respects with the requirements of the
Securities Act and the Rules and Regulations and (2) did not or
will not contain any untrue statement of a
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material fact or
omit to state a material fact necessary to make the statements
therein not misleading. The Prospectus, as amended or
supplemented, as of its date and at all times subsequent thereto
through the date on which the Offering is terminated
(“Termination Date”), (1) complied, or will comply, in
all material respects with the requirements of the Securities Act
and the Rules and Regulations, and (2) did not or 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. The representations and warranties
set forth in the two immediately preceding sentences will not
extend to such statements supplied by Ameriprise in writing to the
Company specifically for inclusion in the Registration
Statement. The Prospectus and each amendment or supplement
thereto delivered to Ameriprise was or will be identical to the
electronically transmitted copies thereof filed with the SEC
pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
1.4
The Company will apply the funds received from the sale of the
Shares as set forth in the Prospectus under the caption
“Estimated Use of Proceeds.”
1.5
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 Amended and Restated Dealer Manager Agreement dated December
29, 2006 (the “Dealer Manager Agreement”), by and
between the Company and the Dealer Manager, the various selected
dealer agreements between the Dealer Manager and, with the
exception of Ameriprise, each of the selected dealers soliciting
subscriptions for Shares pursuant to the Offering (collectively,
the “Selected Dealer Agreements”) or the Amended and
Restated Advisory Management Agreement between the Company and the
Advisor dated December 29, 2006 (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 or the Advisory Agreement, except such
as have been already made or obtained under the Securities Act or
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or as may be required under state
securities laws.
1.6
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 the Company, any of its subsidiaries, the Dealer Manager,
the Advisor or Behringer Harvard Holdings Inc. (the
“Sponsor”), which is required to be disclosed in the
Registration Statement, 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 the Company, any of its
subsidiaries, the Dealer Manager, the Advisor or the Sponsor is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business,
would not reasonably be expected to result in a Material Adverse
Effect or materially adversely affect other properties
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or assets of the
Company, any of its subsidiaries, the Dealer Manager, the Advisor
or the Sponsor.
1.7
None of the Company, any of its subsidiaries, the Dealer Manager or
the Advisor is 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, and none of the Company, any of its
subsidiaries, the Dealer Manager, the Advisor or the Sponsor is
(i) 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
the Company, any of its subsidiaries, the Dealer Manager, the
Advisor or the Sponsor is a party or by which any of them may be
bound or to which any of the respective properties or assets of the
Company, any of its subsidiaries, the Dealer Manager, the Advisor
or the Sponsor is subject (collectively, “Agreements and
Instruments”); or (ii) 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 (i) and (ii), where such conflict, breach,
violation or default would not reasonably be expected to have
individually or in the aggregate, a Material Adverse Effect; and
the execution, delivery and performance by the Company, the Dealer
Manager, the Advisor and the Sponsor of this Agreement, the Dealer
Manager Agreement, the Selected Dealer Agreements and the Advisory
Agreement, as applicable, 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 each of the Company, the
Dealer Manager, the Advisor and the Sponsor with its obligations
hereunder and thereunder, as applicable, have been duly authorized
by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, default or Repayment Event
(as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company, any of its subsidiaries, the Dealer Manager, the
Advisor or the Sponsor pursuant to, any of the Agreements and
Instruments, except for such conflicts, breaches or defaults or
liens, charges or encumbrances 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 of the Company, and of its
subsidiaries, the Dealer Manager, the Advisor or the Sponsor 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 Company or any of its property. 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 the Company, any subsidiary of
the Company, the Dealer Manager, the Advisor or the Sponsor or any
of their respective subsidiaries.
1.8
This Agreement, the Dealer Manager Agreement, the Selected Dealer
Agreements and the Advisory Agreement 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
4
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.
1.9
At the time of the issuance of the Shares, the Shares will be duly
authorized and validly issued, and upon payment therefor, will be
fully paid and nonassessable and will conform in all 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 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, issue 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 was issued in
violation of the preemptive or other similar rights of any
stockholder of the Company.
1.10
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
(i) no shares of Common Stock are to be reserved for any
purpose; (ii) there are no outstanding securities convertible
into or exchangeable for any shares of Common Stock; (iii) 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.
1.11
The financial statements of the Company, 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 and its consolidated
subsidiaries as of the date indicated and the results of its
operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with U.S. generally accepted accounting principles
applied on a consistent basis and comply with the requirements of
Regulation S-X promulgated by the SEC; and Deloitte and Touche LLP,
whose reports are filed with the SEC as a part of the Registration
Statement, are, with respect to the Company and any affiliates
thereto, independent accountants as required by the Securities Act
and the Rules and Regulations and, to the Company’s
knowledge, have been registered with the Public Company Accounting
Oversight Board. Any selected financial data and any 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, and have been prepared in accordance
with the SEC’s rules and guidelines with respect to pro forma
financial statements, 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.
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1.12
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 change in
the condition (financial or otherwise) of the Company or in the
earnings, affairs or business prospects of the Company, 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.
1.13
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 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.
1.14
The Advisor is a Texas limited partnership duly formed, validly
existing, and in good standing under the laws of the State of Texas
with full power and authority to conduct its business as described
in the Prospectus, and is or will be qualified to do business and
is in good standing as a foreign limited partnership in each other
jurisdiction in which it is doing business as such, as described in
the Prospectus, which (i) requires such qualification to enable the
Advisor to conduct the business in which it is engaged or proposes
to engage as described in the Prospectus or (ii) may require such
qualification, and the failure to so qualify could reasonably be
expected to have a Material Adverse Effect.
1.15
The Dealer Manager has been duly formed and is validly existing as
a limited partnership in good standing under the laws of the State
of Texas with full power and authority to conduct its business as
described in the Prospectus. The Dealer Manager is a member of the
National Association of Securities Dealers, Inc.
(“NASD”) and is subject to the supervision and
examination of the SEC.
1.16
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.
1.17
The Company intends to satisfy the requirements of the Internal
Revenue Code of 1986, as amended (the “Code”), for
qualification of the Company as a real estate investment
trust. Commencing with the taxable year ending December 31,
2006, the Company has been organized and has operated in conformity
with the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Code and its actual
method of operation has enabled it and its proposed method of
operation as described in the Prospectus will enable it to continue
to meet the requirements for taxation as a real estate investment
trust under the Code.
6
1.18
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.
1.19
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 used or
delivered by the Company or any of its affiliates or Ameriprise in
connection with the Offering 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 in conjunction with the Prospectus delivered therewith,
not misleading. Furthermore, all such advertising and
supplemental sales literature will have received all required
regulatory approval, which may include but is not limited to, the
SEC, the NASD and state securities agencies, as applicable, prior
to use.
1.20
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 or organization, 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 capital stock or other equity interests 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 security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock or other equity
interests of any Subsidiary was issued in violation of the
preemptive or similar rights of any stockholder or equity holder 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.
1.21
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 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 have a Material Adverse
Effect.
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1.22
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 written or other official notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses.
1.23
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 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 any such
agreements may be limited under applicable securities laws. 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.
1.24
Except as otherwise disclosed in the Prospectus: (i) the
Company and its subsidiaries have good and insurable or good, valid
and 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 claims that could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; (ii) there are no liens, charges,
encumbrances, 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
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aggregate, are
not material with respect to the Company and its subsidiaries
considered as one enterprise; (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 insured easements, 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 could
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and (ix) neither the Company
nor any of its subsidiaries nor 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 such defaults as
could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
1.25
The Company’s 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 the
Company’s subsidiaries 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 the property, except as otherwise disclosed in the
Prospectus. The Company or one of its subsidiaries is entitled to
all benefits of the insured thereunder. With respect to any
non-U.S. real property that may be 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
9
its respective
equivalent, as the case may be, vested in the applicable
subsidiary. Each property described in the Prospectus or
reflected in the Company’s most recent consolidated financial
statements included in the Prospectus is or will be insured by
extended coverage hazard and casualty insurance in amounts and on
such terms as are customarily carried by 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
lessors of properties similar to those owned by the Company and its
subsidiaries in amounts and on such terms as are customarily
carried by 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 on all policies (except workers’
compensation) required under the leases for such
properties.
1.26
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) which
could, 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
could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or could result in any violation of
any applicable Environmental Laws except for such violations that
could 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 such violations, work, repairs,
construction, alterations, removal or remedial actions or
installations as could not, individually or in the aggregate,
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 could, 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 (as defined below) under any Environmental
Laws, except such Liens which, individually or in the aggregate,
could not 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 could
not,
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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 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. “Lien” means any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in
or on any asset. “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.
1.27
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.
1.28
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.
1.29
The Company and each of its subsidiaries has filed all federal,
state and foreign income tax returns which have been required to be
filed on or before the due date (taking into account all extensions
of time to file), and has paid or provided for the payment of all
taxes indicated by said 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 the failure of which to pay would not reasonably be
expected to have a Material Adverse Effect.
1.30
Any required consent and authorization has been obtained for the
use of any trademark or service mark in any advertising and
supplemental sales literature or other materials 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.
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