Exhibit 1.1
Execution Copy
DCT INDUSTRIAL TRUST
INC.
(A Maryland corporation)
24,000,000 Shares of Common
Stock
PURCHASE AGREEMENT
Dated: June 2, 2009
DCT INDUSTRIAL TRUST
INC.
(a Maryland corporation)
24,000,000 Shares of Common
Stock
(Par Value $0.01 Per
Share)
PURCHASE AGREEMENT
June 2, 2009
MERRILL LYNCH &
CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
J.P. MORGAN SECURITIES
INC.
277 Park Avenue
New York, New York 10172
WACHOVIA CAPITAL MARKETS,
LLC
375 Park Avenue
New York, New York 10152
as Representatives of the several
Underwriters
Ladies and Gentlemen:
DCT INDUSTRIAL TRUST INC., a
Maryland corporation (the “Company”), and DCT
Industrial Operating Partnership LP, a Delaware limited partnership
and the Company’s operating partnership subsidiary (the
“Operating Partnership”), confirm their agreements with
Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated (“Merrill Lynch”),
J.P. Morgan Securities Inc. (“JP Morgan”), Wachovia
Capital Markets, LLC (“Wachovia”) and each of the other
Underwriters named in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, JP Morgan and Wachovia are acting
as representatives (in such capacity, the
“Representatives”), with respect to (i) the sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of
Common Stock, par value $0.01 per share, of the Company
(“Common Stock”) set forth in Schedule A
hereto and (ii) the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 3,600,000
additional shares of Common Stock to cover overallotments, if any.
The aforesaid 24,000,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or
any part of the 3,600,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the
“Securities.”
The Company understands that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the
Securities and Exchange Commission (the “Commission”)
an automatic shelf registration statement on Form S-3 (No.
333-145253), including the related preliminary prospectus or
prospectuses, which registration statement became effective upon
filing under Rule 462(e) of the rules and regulations of the
Commission (the “1933 Act Regulations”) under the
Securities Act of 1933, as amended (the “1933 Act”).
Such registration statement covers the registration of the
Securities under the 1933 Act. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a
prospectus in accordance with the provisions of Rule 430B
(“Rule 430B”) of the 1933 Act Regulations and paragraph
(b) of Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. Any information included in such prospectus that was
omitted from such registration statement at the time it became
effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B is referred to as
“Rule 430B Information.” Each preliminary prospectus
supplement used in connection with the offering of the Securities,
together with the base prospectus dated August 8, 2007 that
was included in the Original Registration Statement (as defined
below), is herein called a “preliminary prospectus.”
Such registration statement, at any given time, including the
amendments thereto at such time, the exhibits and any schedules
thereto at such time, the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act at
such time and the documents otherwise deemed to be a part thereof
or included therein by 1933 Act Regulations, is herein called the
“Registration Statement.” The Registration Statement at
the time it originally became effective is herein called the
“Original Registration Statement.” The final prospectus
in the form first furnished to the Underwriters for use in
connection with the offering of the Securities, including the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act at the time of the
execution of this Agreement and any preliminary prospectuses that
form a part thereof, is herein called the “Prospectus.”
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission.
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by the 1933 Act Regulations to be
a part of or included in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the “1934
Act”) which is incorporated by reference in or otherwise
deemed by the 1933 Act Regulations to be a part of or included in
the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and
Warranties .
(a) Representations and
Warranties by the Company . Each of the Company and the
Operating Partnership, jointly and severally, represents and
warrants to each Underwriter as of the date hereof, the Applicable
Time referred to in Section 1(a)(i) hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date
of Delivery (if any) referred to in Section 2(b) hereof, and
agrees with each Underwriter, as follows:
(i) Status as a Well-Known
Seasoned Issuer . (A) At the time of filing the Original
Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934 Act or form of prospectus),
(C) at the time the Company or any person acting on its behalf
(within the meaning,
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for this clause only, of Rule 163(c)
of the 1933 Act Regulations) made any offer relating to the
Securities in reliance on the exemption of Rule 163 of the 1933 Act
Regulations and (D) at the date hereof, the Company was and is
a “well-known seasoned issuer” as defined in Rule 405
of the 1933 Act Regulations (“Rule 405”), including not
having been and not being an “ineligible issuer” as
defined in Rule 405. The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405, and the Securities, since their registration on the
Registration Statement, have been and remain eligible for
registration by the Company on a Rule 405 “automatic shelf
registration statement.” The Company has not received from
the Commission any notice pursuant to Rule 401(g)(2) of the 1933
Act Regulations objecting to the use of the automatic shelf
registration statement form.
At the time of filing the Original
Registration Statement, at the earliest time thereafter that the
Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) of the 1933 Act
Regulations) of the Securities and at the date hereof, the Company
was not and is not an “ineligible issuer,” as defined
in Rule 405.
(ii) Registration Statement,
Prospectus and Disclosure at Time of Sale . The Original
Registration Statement became effective upon filing under Rule
462(e) of the 1933 Act Regulations (“Rule 462(e)”) on
August 8, 2007, and any post-effective amendment thereto also
became effective upon filing under Rule 462(e). No stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company,
are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied
with.
Any offer that is a written
communication relating to the Securities made prior to the filing
of the Original Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only,
of Rule 163(c) of the 1933 Act Regulations) has been filed with the
Commission in accordance with the exemption provided by Rule 163 of
the 1933 Act Regulations (“Rule 163”) and otherwise
complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the
exemption from Section 5(c) of the 1933 Act provided by Rule
163.
At the respective times the Original
Registration Statement and each amendment thereto became effective,
at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at the
Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), the Registration Statement complied and will
comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued and at the Closing Time
(and, if any Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
Each preliminary prospectus
(including the prospectus or prospectuses filed as part of the
Original Registration Statement or any amendment thereto) complied
when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the
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Prospectus delivered to the
Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission, except to the extent permitted by Regulation
S-T.
As of the Applicable Time (as
defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the
Applicable Time, the Statutory Prospectus (as defined below) and
the information included on Schedule B hereto, all
considered together (collectively, the “General Disclosure
Package”), nor (y) any individual Issuer Limited Use
Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
8:00 A.M. (Eastern time) on June 2, 2009 or such other time as
agreed by the Company and the Representatives.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the
offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors
(other than a Bona Fide Electronic Road Show (as defined in Rule
433)), as evidenced by its being specified in Schedule D
hereto.
“Issuer Limited Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing
Prospectus.
“Statutory Prospectus”
as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that
time, including any document incorporated by reference therein and
any preliminary or other prospectus deemed to be a part
thereof.
Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Securities or until
any earlier date that the issuer notified or notifies the
Representatives as described in Section 3(e), did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to
be a part thereof that has not been superseded or
modified.
The representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement, the Prospectus or any Issuer
Free
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Writing Prospectus made in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly
for use therein.
(iii) Incorporated Documents
. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when
they became effective or at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”), as
applicable, and, when read together with the other information in
the Prospectus, (a) at the time the Original Registration
Statement became effective, (b) at the earlier of the time the
Prospectus was first used and the date and time of the first
contract of sale of Securities in this offering and (c) at the
Closing Time (and if any Option Securities are purchased, at the
Date of Delivery), did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(iv) Independent Accountants
. The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(v) Financial Statements .
The historical financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement,
the General Disclosure Package and the Prospectus, together with
the related schedules and notes, present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; the historical statements of revenues and certain
expenses of the properties or portfolios of properties included in
the Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedules and notes, present
fairly in all material respects the financial position of such
properties or portfolios of properties for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. The
supporting schedules, if any, present fairly in all material
respects in accordance with GAAP the information required to be
stated therein, except as may be expressly stated in the related
notes thereto. The selected historical financial data and the
summary historical financial information included in the General
Disclosure Package and the Prospectus present fairly in all
material respects the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. All disclosures
contained in the Registration Statement, the General Disclosure
Package or the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply in all material respects with
Regulation G of the Securities Exchange Act of 1934, as amended
(the “1934 Act”) and Item 10 of Regulation S-K of
the 1933 Act, to the extent applicable.
(vi) No Material Adverse Change
in Business . Since the respective dates as of which
information is given in the Registration Statement, the General
Disclosure Package or the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in
the ordinary course of
5
business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly distributions
on the Common Stock in amounts per share that are consistent with
past practice, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
(vii) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
state of Maryland and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement and, as the sole general partner
of the Operating Partnership, to cause the Operating Partnership to
enter into and perform the Operating Partnership’s
obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect.
(viii) Good Standing of the
Operating Partnership . The Operating Partnership has been duly
formed and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware with full power
and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, and is duly qualified as a foreign limited partnership
to transact business and is in good standing under the laws of each
jurisdiction which requires such qualification except where the
failure to be so qualified or to be in good standing would not
result in a Material Adverse Effect. The Company is the sole
general partner of the Operating Partnership. At the Closing Date,
the aggregate percentage interests of the Company and the limited
partners in the Operating Partnership will be as set forth in the
Prospectus; provided, that to the extent any portion of the
overallotment option described in Section 2(b) hereof is
exercised at the Closing Date, the percentage interest of the
Company and of such limited partners in the Operating Partnership
will be adjusted accordingly.
(ix) Good Standing of
Subsidiaries . Each Subsidiary (as defined below) has been duly
organized and is validly existing as a corporation or other
business entity in good standing under the laws of the jurisdiction
of its organization, has power and authority to own, lease and
operate its properties and to conduct its business as described in
the General Disclosure Package and the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock or other ownership interests
of each such Subsidiary has been duly authorized and validly
issued, is (as applicable) 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, except for such security interests,
mortgages, pledges, liens, encumbrances, claims or equities which
would not individually or in the aggregate reasonably be expected
to materially affect the ownership of such Subsidiary by the
Company, directly or through subsidiaries; none of the outstanding
shares of capital stock or other ownership interests of any
Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary. The Operating
Partnership is the only Subsidiary that constitutes a
“significant subsidiary” of the Company (as such term
is defined in Rule 1-02 of Regulation S-X). The only
subsidiaries of the Company are the subsidiaries listed on Exhibit
21.1 to the Form 10-K for the fiscal year ended December 31,
2008 filed by the Company with the Commission on March 2, 2009
as updated by Schedule 1(a)(vii)
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hereto. “Subsidiary”
means each direct and indirect consolidated subsidiary of the
Company, including, without limitation, the Operating
Partnership.
(x) Capitalization . The
authorized, issued and outstanding capital stock of the Company is
as set forth in the General Disclosure Package and the Prospectus
(except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectus or pursuant to the exercise,
redemption or exchange of convertible or exchangeable securities,
options or warrants referred to in the Prospectus, including common
units of limited partnership interest in the Operating Partnership
(“OP Units”) or LTIP units of limited partnership
interest in the Operating Partnership (“LTIP Units”).
The shares of issued and outstanding capital stock of the Company
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 securityholder of the Company.
All issued and outstanding OP Units
have been duly authorized and validly issued and have been offered
and sold or exchanged in compliance in all material respects with
all applicable laws (including, without limitation, federal or
state securities laws) and not in violation of the preemptive or
other similar rights of any security holder of the Operating
Partnership or any other person or entity. Except (A) as
set forth in the Amended and Restated Operating Agreement of
Stirling Capital Investments, LLC, dated as of October 4,
2006, (B) for LTIP Units convertible into OP Units pursuant to
the terms of the Amended and Restated Limited Partnership Agreement
of the Operating Partnership, as amended (the “LP
Agreement”) and (C) for securities convertible into or
exchangeable for OP Units and outstanding options, rights
(preemptive or otherwise) and warrants to purchase or subscribe for
OP Units issued to the Company in connection with the
Company’s issuance of securities convertible into or
exchangeable for shares of Common Stock and outstanding options,
rights (preemptive or otherwise) and warrants to purchase or
subscribe for shares of Common Stock, there are no outstanding
securities convertible into or exchangeable for any Units and no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or subscribe for OP Units or other securities of the
Operating Partnership. The terms of the OP Units conform in all
material respects to statements and descriptions related thereto
contained in each of the General Disclosure Package and the
Prospectus.
(xi) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by each of the Company and the Operating Partnership.
In addition, (A) the LP Agreement has been duly and validly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting creditors’ rights and general principles of equity
and except as rights to indemnity and contribution thereunder may
be limited by applicable law or policies underlying such law;
(B) each of the limited liability operating agreements,
partnership agreements, stockholders’ agreements or similar
agreements entered into between the Company, the Operating
Partnership and/or a Subsidiary and a third-party (the “Joint
Venture Agreements”) has been duly and validly authorized,
executed and delivered by the Company, the Operating Partnership
and/or Subsidiary, as applicable, and is a valid and binding
agreement of the Company, the Operating Partnership and/or
Subsidiary, enforceable against the Company, the Operating
Partnership and/or Subsidiary in accordance with its terms, except
to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting
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creditors’ rights and general
principles of equity and except as rights to indemnity and
contribution thereunder may be limited by applicable law or
policies underlying such law; and (C) none of the Company, the
Operating Partnership or any Subsidiary is in default under any of
the Joint Venture Agreements nor, to the knowledge of the Company,
is any third-party that is a party to any Joint Venture Agreement
in default under any of the Joint Venture Agreements.
(xii) Authorization and
Description of Securities . The Securities to be purchased by
the Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; the
Common Stock conforms, in all material respects, to all statements
relating thereto contained in the General Disclosure Package and
the Prospectus and such description conforms, in all material
respects, to the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to personal
liability by reason of being such a holder; and the issuance of the
Securities is not subject to the preemptive or other similar rights
of any securityholder of the Company.
(xiii) Absence of Defaults and
Conflicts . Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or 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 or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any Subsidiary is
subject (collectively, “Agreements and Instruments”)
except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
herein and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the General Disclosure
Package and the Prospectus under the caption “Use of
Proceeds”) and compliance by the Company with its obligations
hereunder 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, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches, defaults or Repayment Events or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the
provisions of (a) the charter or by-laws of the Company or any
Subsidiary or (b) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
assets, properties or operations. As used herein, a
“Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
Subsidiary.
(xiv) Absence of Labor
Dispute . No labor dispute with the employees of the Company or
any Subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any
Subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, would result in a Material
Adverse Effect.
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(xv) Absence of Proceedings .
There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might result
in a Material Adverse Effect, or which might materially and
adversely affect the properties or assets thereof, on an aggregate
basis, or the consummation of the transactions contemplated in this
Agreement or the performance by the Company or the Operating
Partnership of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or
any Subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not result in a Material Adverse
Effect.
(xvi) Accuracy of Exhibits .
There are no contracts or documents which are required to be
described in the Registration Statement, the General Disclosure
Package and the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not
been so described and filed as required; and the statements in the
Prospectus under the headings “Description of Common
Stock,” “Certain Provisions of the Maryland General
Corporation Law and Our Charter and Bylaws” and
“Federal Income Tax Considerations,” insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings in all
material respects.
(xvii) Possession of Intellectual
Property . Except as would not result in a Material Adverse
Effect, 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, singly or in the aggregate, would result
in a Material Adverse Effect.
(xviii) Absence of
Manipulation . Neither the Company, the Operating Partnership,
nor any affiliate of the Company or the Operating Partnership has
taken, nor will the Company, the Operating Partnership, or any
affiliate take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to
cause or result in stabilization or manipulation of the price of
any security of the Company or the Operating Partnership to
facilitate the sale or resale of the Securities.
(xix) 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 each of the Company and the
Operating Partnership of its obligations hereunder, in connection
with the offering, issuance or sale of the Securities hereunder or
the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations, state securities laws or by the
Financial Industry Regulatory Authority
(“FINRA”).
9
(xx) No Integration . Neither
the Company nor the Operating Partnership has sold or issued any
securities that would be integrated with the offering of the
Securities pursuant to the 1933 Act and the 1933 Act Regulations or
the interpretations thereof by the Commission.
(xxi) 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 where the failure so to possess would not, singly or in the
aggregate, result in a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect; and 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 which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(xxii) Property .
(A) The Operating Partnership, directly or indirectly, or any
joint venture entity in which any of the Company or the Operating
Partnership, directly or indirectly, owns an interest, as the case
may be, has good and marketable title fee or leasehold, as the case
may be, to each of the interests in the properties and the other
assets described in the General Disclosure Package and the
Prospectus as being directly or indirectly owned by the Operating
Partnership or the applicable joint venture entity, respectively,
(the “ Properties ”), in each case free and
clear of all liens, encumbrances, claims, security interests and
defects, other than those referred to in the General Disclosure
Package and the Prospectus or those which would not have a Material
Adverse Effect; (B) all liens, charges, encumbrances, claims
or restrictions on or affecting any of the Properties and the
assets of the Company, Operating Partnership, Subsidiaries or joint
venture entities which are required to be disclosed in the General
Disclosure Package or the Prospectus are disclosed therein;
(C) except as otherwise described in the General Disclosure
Package and the Prospectus, none of the Company, Operating
Partnership, Subsidiaries or joint venture entities or any tenant
of any of the Properties is in default under (i) any space
leases (as lessor or lessee, as the case may be) relating to the
Properties, (ii) any of the mortgages or other security
documents or other agreements encumbering or otherwise recorded
against the Properties, or (iii) any ground lease, sublease or
operating sublease relating to any of the Properties, and neither
the Company nor the Operating Partnership knows of any event which,
but for the passage of time or the giving of notice, or both, would
constitute a default under any of such documents or agreements
except with respect to (i), (ii) and (iii) immediately
above any such default that would not have a Material Adverse
Effect; (D) no tenant under any of the leases at the
Properties has a right of first refusal or option to purchase the
premises demised under such lease, other than those referred to in
the General Disclosure Package and the Prospectus, except for
rights or options that would not have a Material Adverse Effect if
exercised; (E) to the knowledge of the Company and the
Operating Partnership, each of the Properties complies with all
applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and
laws relating to access to the Properties), except for such
failures to comply that would not have a Material Adverse Effect;
(F) neither the Company nor the Operating Partnership has
knowledge of any pending or threatened condemnation proceedings,
zoning change or other proceeding or action that will in any
material manner affect the size of, use of, improvements on,
construction on or access to the Properties; (G) the mortgages
and deeds of trust which encumber the Properties are not
convertible into equity securities of the
10
entity owning such Property and said
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized with any property other than other Properties;
and (H) the Company, the Operating Partnership or a
Subsidiary, as applicable, has obtained title insurance on the fee
or leasehold interests, as the case may be, in each of the
Properties, in an amount at least equal to the greater of
(i) the mortgage indebtedness of each such Property or
(ii) the purchase price of each such Property.
(xxiii) Title to Personal
Property . Except as set forth in the General Disclosure
Package and the Prospectus or as would not reasonably be expected
to result in a Material Adverse Effect, the Company and its
subsidiaries have good and marketable title to all personal
property owned by them, free and clear of all encumbrances and
defects, and all personal property held under lease by the Company
or any Subsidiary are held by it under valid, subsisting and
enforceable leases.
(xxiv) Investment Company Act
. Neither the Company nor the Operating Partnership is required,
and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be required, to register as an
“investment company” under the Investment Company Act
of 1940, as amended (the “1940 Act”).
(xxv) Environmental Laws .
Except as described in the Registration Statement and except as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) to the knowledge of the Company, there are no events
or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws. Except
as otherwise set forth in the General Disclosure Package and the
Prospectus, and except as would not individually or in the
aggregate reasonably be expected to materially affect the value of
such Property or interfere in any material respect with the use
made and proposed to be made of such Property by the Company or any
Subsidiary, to the knowledge of the Company and the Operating
Partnership, there have been no and are no (i) aboveground or
underground storage tanks; (ii) polychlorinated biphenyls
(“PCBs”) or PCB-containing equipment;
(iii) asbestos or asbestos containing materials;
(iv) lead based paints; (v) mold or other airborne
contaminants; or (vi) dry-cleaning facilities in, on, under,
or about any Property owned by the Company, the Operating
Partnership or their subsidiaries.
11
In the ordinary course of their
business, the Company and its subsidiaries periodically review the
effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of
which they identify and evaluate associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company and its subsidiaries have reasonably concluded
that such associated costs and liabilities would not, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the
Prospectus.
None of the environmental
consultants which prepared environmental and asbestos inspection
reports with respect to any of the Properties was employed for such
purpose on a contingent basis or has any substantial interest in
the Company or any of its Subsidiaries or any joint venture
entities, and none of them nor any of their directors, officers or
employees is connected with the Company or any of its Subsidiaries
as a promoter, selling agent, voting trustee, director, officer or
employee.
(xxvi) Registration Rights .
Except as set forth in the Registration Rights Agreement, dated as
of October 10, 2006, between the Company and Dividend Capital
Advisors Group LLC and the Amended and Restated Limited Partnership
Agreement of the Operating Partnership, dated October 10,
2006, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or
the Operating Partnership under the 1933 Act.
(xxvii) Accounting Controls and
Disclosure Controls . The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are
executed in accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management’s
general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the General Disclosure
Package and the Prospectus, since the end of the Company’s
most recent audited fiscal year, there has been (1) no
material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (2) 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.
The Company and its consolidated
subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act
is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(xxviii) Equity Plans .
Except as described in the General Disclosure Package and
the Prospectus, with respect to stock options or other equity
incentive grants (collectively, “Awards”) granted
subsequent to the adoption of the Sarbanes-Oxley Act on
July 31, 2002 pursuant to t
