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Exhibit 1.1
MEDICAL PROPERTIES TRUST, INC.
12,066,823 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
July 7, 2005
FRIEDMAN, BILLINGS, RAMSEY & CO.,
INC.
As Representative of the several
Underwriters listed on Schedule II hereto
1001 19th Street North
Arlington, Virginia 22209
Ladies and Gentlemen:
Medical Properties Trust, Inc., a Maryland corporation (the
"Company"), MPT Operating Partnership,
L.P., a Delaware limited partnership (the
"Operating Partnership"), and certain
stockholders of the Company listed on
Schedule I hereto (the "Selling
Stockholders"), each confirms its or his
agreement with each of the Underwriters
listed on Schedule II hereto
(collectively, the "Underwriters"), for
whom Friedman, Billings, Ramsey & Co.,
Inc. ("FBR") is acting as representative
(in such capacity, the
"Representative"), with respect to (i) the
sale by the Company and the Selling
Stockholders of 12,066,823 shares (the
"Initial Shares") of common stock, par
value $0.001 per share, of the Company
("Common Stock") in the respective
numbers of shares set forth opposite the
names of the Company and each such
Selling Stockholder in Schedule I hereto,
and the purchase by the Underwriters,
acting severally and not jointly, of the
respective number of Initial Shares set
forth opposite the names of the
Underwriters in Schedule II hereto, and (ii) the
grant of the option described in Section
1(b) hereof to purchase all or any part
of 1,810,023 additional shares of Common
Stock to cover over-allotments (the
"Option Shares"), if any, from the Company
to the Underwriters, acting severally
and not jointly, in amounts proportionate
to the respective numbers of Initial
Shares set forth opposite the names of the
Underwriters on Schedule II hereto.
The Initial Shares to be purchased by the
Underwriters and all or any part of
the Option Shares are hereinafter called,
collectively, the "Shares."
The Company understands that the Underwriters propose to make a
public offering of the Shares as soon as
the Underwriters deem advisable after
this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange
Commission
(the Commission"), a registration statement
on Form S-11 (No. 333-119957) and a
related preliminary prospectus for the
registration of the Shares under the
Securities Act of 1933, as amended (the
"Securities Act"), and the rules and
regulations thereunder (the "Securities Act
Regulations"). The Company has
prepared and filed such amendments thereto,
if any, and such amended preliminary
prospectuses, if any, as may have been
required to the date hereof, and will
file such additional amendments thereto and
such amended prospectuses as may
hereafter be required. The registration
statement has been declared effective
under the Securities Act by the Commission.
The registration statement as
amended at the time it became effective
(including
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financial statements, exhibits, schedules
and other information deemed to be a
part of the registration statement at the
time it became effective pursuant to
Rule 430A(b) of the Securities Act
Regulations) is hereinafter called the
"Registration Statement," except that, if
the Company files a post-effective
amendment to such registration statement
which becomes effective prior to the
First Closing Date (as defined below),
"Registration Statement" shall refer to
such registration statement as so amended.
Any registration statement filed by
the Company pursuant to Rule 462(b) of the
Securities Act Regulations is
hereinafter called the "Rule 462(b)
Registration Statement" and from and after
the date and time of filing the Rule 462(b)
Registration Statement, the term
Registration Statement shall include the
Rule 462(b) Registration Statement.
Each prospectus included in the
Registration Statement, or amendments thereof or
supplements thereto, before it became
effective under the Securities Act and any
prospectus filed with the Commission by the
Company with the consent of the
Underwriters pursuant to Rule 424(a) of the
Securities Act Regulations is
hereinafter called the "Preliminary
Prospectus." The term "Prospectus" means the
final prospectus, as first filed with the
Commission pursuant to Rule 424(b) of
the Securities Act Regulations, and any
amendments thereof or supplements
thereto. The Commission has not issued any
order preventing or suspending the
use of any Preliminary Prospectus.
The Operating Partnership or a Subsidiary (as defined below) owns
a
portfolio of nine operating facilities and
has three facilities that are under
development (the "Current Properties"). The
Operating Partnership or a
Subsidiary has entered into agreements (the
"Acquisition Agreements") as
described in the Registration Statement to
acquire or develop five additional
properties (the "Pending Acquisition
Properties").
Each Selling Stockholder has executed and delivered a (i)
Custody
Agreement signed by such Selling
Stockholder and American Stock Transfer & Trust
Co., as custodian (the "Custodian"), in the
form attached hereto as Exhibit A,
pursuant to which each Selling Stockholder
party thereto has placed the Initial
Shares to be sold by it pursuant to this
Agreement in custody (the "Custody
Agreement") and a (ii) Power of Attorney,
in the form attached hereto as Exhibit
B (the "Power of Attorney"), appointing
certain individuals named therein as
such Selling Stockholder's
attorneys-in-fact (each, an "Attorney-in-Fact," and
collectively, the "Committee") with the
authority to execute and deliver this
Agreement on behalf of such Selling
Stockholder and to take certain other
actions with respect thereto and to the
extent set forth therein relating to the
transactions contemplated by this Agreement
and by the Prospectus.
The Company, each of the Selling Stockholders and the
Underwriters
agree as follows:
1.
Sale and
Purchase:
(a)
Initial Shares.
Upon the basis of the representations and warranties
and other terms and conditions herein set
forth at a purchase price per share of
$9.765, the Company agrees to sell to the
Underwriters the number of Initial
Shares set forth in Schedule I opposite its
name, and each Selling Stockholder
agrees to sell to the Underwriters the
number of Initial Shares set forth in
Schedule I opposite such Selling
Stockholder's name, and each Underwriter
agrees, severally and not jointly, to
purchase from the Company and the Selling
Stockholders the number of Initial Shares
set forth in Schedule II opposite such
Underwriter's name, plus any
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additional number of Initial Shares which
such Underwriter may become obligated
to purchase pursuant to the provisions of
Section 8 hereof, subject in each
case, to such adjustments among the
Underwriters as the Representative, in its
sole discretion, shall make to eliminate
any sales or purchases of fractional
shares.
(b)
Option Shares.
In addition, upon the basis of the representations
and warranties and other terms and
conditions herein set forth, at the purchase
price per share set forth in Section 1(a)
hereof, the Company hereby grants an
option to the Underwriters, acting
severally and not jointly, to purchase from
the Company all or any part of the Option
Shares, plus any additional number of
Option Shares which such Underwriter may
become obligated to purchase pursuant
to the provisions of Section 8 hereof. The
option hereby granted will expire 30
days after the date hereof and may be
exercised in whole or in part from time to
time only for the purpose of covering
over-allotments which may be made in
connection with the offering and
distribution of the Initial Shares upon notice
by the Representative to the Company
setting forth the number of Option Shares
as to which the several Underwriters are
then exercising the option and the time
and date of payment and delivery for such
Option Shares. Any such time and date
of delivery (an "Option Closing Date")
shall be determined by the
Representative, and may be the First
Closing Date (as hereinafter defined), but
otherwise shall not be later than five full
business days after the exercise of
such option, nor in any event prior to the
First Closing Date, as hereinafter
defined. If the option is exercised as to
all or any portion of the Option
Shares, the Company will sell the total
number of Option Shares then being
purchased and each of the Underwriters,
acting severally and not jointly, will
purchase that proportion of the total
number of Option Shares then being
purchased which the number of Initial
Shares set forth in Schedule II opposite
the name of such Underwriter bears to the
total number of Initial Shares,
subject in each case to such adjustments
among the Underwriters as the
Representative, in its sole discretion,
shall make to eliminate any sales or
purchases of fractional shares.
2.
Payment
and Delivery:
(a)
Initial Shares.
The Shares to be purchased by each Underwriter
hereunder shall be delivered by or on
behalf of the Company and the Selling
Stockholders to the Representative, in
definitive form, and in such authorized
denominations and registered in such names
as the Representative may request
upon at least forty-eight hours prior
notice to the Company and the Selling
Stockholders, including, at the option of
the Representative, through the
facilities of The Depository Trust Company
("DTC") for the account of such
Underwriter, against payment by or on
behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal
(same-day) funds to the account
specified to the Representative by the
Company and each of the Selling
Stockholders, upon at least forty-eight
hours prior notice. The Company will
cause any certificates representing the
Initial Shares to be made available for
checking and packaging at least twenty-four
hours prior to the First Closing
Date with respect thereto at the office of
Friedman, Billings, Ramsey & Co.,
Inc., 1001 19th Street North, Arlington,
Virginia 22209, or at the office of DTC
or its designated custodian, as the case
may be (the "Designated Office"). The
time and date of such delivery and payment
shall be 9:30 a.m., New York City
time, on the third (fourth, if pricing
occurs after 4:30 p.m., New York City
time) business day after the date hereof
(unless another time and date shall be
agreed to by the Representative and the
Company). The time and date at which
such payment and delivery are actually made
is hereinafter called the "First
Closing Date."
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(b)
Option Shares.
Any Option Shares to be purchased by each Underwriter
hereunder shall be delivered by or on
behalf of the Company to the
Representative, in definitive form, and in
such authorized denominations and
registered in such names as the
Representative may request upon at least
twenty-four hours prior notice to the
Company, including, at the option of the
Representative, through the facilities of
DTC for the account of such
Underwriter, against payment by or on
behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal
(same-day) funds to the account
specified to the Representative by the
Company upon at least twenty-four hours
prior notice. The Company will cause any
certificates representing the Option
Shares to be made available for checking
and packaging at least twenty-four
hours prior to an Option Closing Date with
respect thereto at the Designated
Office. The time and date of such delivery
and payment shall be 9:30 a.m., New
York City time, on the date specified by
the Representative in the notice given
by the Representative to the Company of the
Underwriters' election to purchase
such Option Shares or on such other time
and date as the Company and the
Representative may agree upon in
writing.
Each of the Company and the Selling Stockholders acknowledges
and
agrees that the Underwriters are acting
solely in the capacity of an arm's
length contractual counterparty to the
Company and the Selling Stockholders with
respect to the offering of Shares
contemplated hereby (including in connection
with determining the terms of the offering)
and not as a financial advisor or a
fiduciary to, or an agent of, the Company,
the Selling Stockholders or any other
person. Additionally, neither the
Representative nor any other Underwriter is
advising the Company, the Selling
Stockholders or any other person as to any
legal, tax, investment, accounting or
regulatory matters in any jurisdiction.
The Company and the Selling Stockholders
shall consult with their own advisors
concerning such matters and shall be
responsible for making their own
independent investigation and appraisal of
the transactions contemplated hereby,
and the Underwriters shall have no
responsibility or liability to the Company or
the Selling Stockholders with respect
thereto. Any review by the Underwriters of
the Company, the transactions contemplated
hereby or other matters relating to
such transactions will be performed solely
for the benefit of the Underwriters
and shall not be on behalf of the Company
or the Selling Stockholders.
3.
Representations and Warranties:
The
Company and the Operating Partnership represent and warrant to
each
Underwriter that:
(a)
the authorized
shares of capital stock of the Company conform in all
material respects to the description
thereof contained in the Prospectus; the
Company has an authorized, issued and
outstanding capitalization as set forth in
the Prospectus under the caption
"Capitalization"; at the First Closing Date,
37,635,862 shares of Common Stock will be
issued and outstanding and no other
shares of preferred stock or any other
class of common stock will be issued and
outstanding; the outstanding shares of
Common Stock of the Company and the
outstanding capital stock, limited
liability company membership interests and
units of limited partnership interest of
each subsidiary of the Company, each of
which is named in Exhibit 21.1 to the
Registration Statement (each, including
the Operating Partnership, except where
noted, a "Subsidiary" and, collectively,
"Subsidiaries") including shares of Common
Stock owned by Selling Stockholders
have been duly and validly authorized and
issued and are fully paid and
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nonassessable, have been issued in
compliance with federal and state securities
laws, and, except as disclosed in the
Prospectus, all of the outstanding capital
stock, units of limited partnership
interest and limited liability company
membership interests of the Subsidiaries
are directly or indirectly owned of
record and beneficially by the Company;
except as disclosed in the Prospectus,
there are no outstanding (i) securities or
obligations of the Company or any of
the Subsidiaries convertible into or
exchangeable for any capital stock of the
Company or any such Subsidiary, (ii)
warrants, rights or options to subscribe
for or purchase from the Company or any
such Subsidiary any such capital stock
or any such convertible or exchangeable
securities or obligations, or (iii)
obligations of the Company or any such
Subsidiary to issue any shares of capital
stock, any such convertible or exchangeable
securities or obligation, or any
such warrants, rights or options;
(b)
the Company has
been duly incorporated and is validly existing as a
corporation under the laws of the State of
Maryland and is in good standing with
the State Department of Assessments and
Taxation of Maryland, with all requisite
corporate power and authority to own, lease
and operate its properties, and
conduct its business as described in the
Registration Statement and the
Prospectus, and is duly qualified as a
foreign corporation to transact business
or licensed and is in good standing in each
jurisdiction in which the nature or
conduct of its business requires such
qualification or license and in which the
failure, individually or in the aggregate,
to be so qualified or licensed (i)
would reasonably be expected to have a
material adverse effect on the
performance of this Agreement or the
consummation of any transactions
contemplated hereby or (ii) would
reasonably be expected to have a material
adverse effect on, or result in a material
adverse change in, the condition
(financial or otherwise), prospects,
earnings, business or properties of the
Company and the Subsidiaries taken as a
whole, whether or not arising from
transactions in the ordinary course of
business, except as set forth or
contemplated in the Prospectus (any such
effect or change described in clause
(ii) hereof is hereinafter called, as the
context so requires, a "Material
Adverse Effect" or a "Material Adverse
Change"); except as disclosed in the
Prospectus, all of the issued and
outstanding shares of beneficial interest,
capital stock, limited liability company
membership interests or units of
limited partnership interests of each
Subsidiary is owned by the Company
directly or through subsidiaries, free and
clear of any security interest,
mortgage, pledge, lien, encumbrance or
claim; except as disclosed in the
Prospectus, no Subsidiary is prohibited or
restricted, directly or indirectly,
from paying dividends to the Company, or
from making any other distribution with
respect to such Subsidiary's capital stock
or from repaying to the Company or
any other Subsidiary any amounts which may
from time to time become due under
any loans or advances to such Subsidiary
from the Company or such other
Subsidiary, or from transferring any such
Subsidiary's property or assets to the
Company or to any other Subsidiary; other
than as disclosed in the Registration
Statement and the Prospectus and the next
paragraph, the Company does not own,
directly or indirectly, any capital stock
or other equity securities of any
other corporation or any ownership interest
in any partnership, joint venture or
other association;
(c)
upon completion
of the offering of the Shares (i) the Company will
be a holder of units of limited partnership
interest in the Operating
Partnership (the "Units") representing an
approximate 99% interest in the
Operating Partnership, (ii) Medical
Properties Trust, LLC (the "General
Partner") will be the holder of Units
representing an approximate 1% interest in
the Operating Partnership, as its sole
general partner, and (iii) the Company
will own a 100% membership interest in the
General Partner; the Subsidiaries
(all of which are named in
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Exhibit 21.1 to the Registration Statement)
have been duly incorporated, formed
or organized, as the case may be, and are
validly existing as a corporation,
limited liability company, general
partnership or limited partnership, as the
case may be, in good standing under the
laws of their respective jurisdictions
of incorporation, formation or
organization, as applicable, with all requisite
power and authority to own, lease and
operate their respective properties and to
conduct their respective businesses as
described in the Registration Statement
and the Prospectus; each Subsidiary is duly
qualified to transact business or
licensed as a foreign corporation, foreign
limited partnership or foreign
limited liability company, as applicable
and is in good standing in each
jurisdiction in which the conduct or nature
of their business requires such
qualification or license and in which the
failure to be so qualified or
licensed, individually or in the aggregate,
would have a Material Adverse
Effect;
(d)
the First
Amended and Restated Agreement of Limited Partnership of
the Operating Partnership, as further
amended and/or restated (the "Partnership
Agreement"), has been duly and validly
authorized, executed and delivered by or
on behalf of the partners of the Operating
Partnership and constitutes a valid
and binding agreement of the parties
thereto, enforceable in accordance with its
terms, except as enforceability may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting creditors' rights generally
or by general principles of equity;
(e)
the Company has
delivered to the Representative copies of the
Registration Statement (with exhibits) and
the Preliminary Prospectus, as
amended or supplemented, in such quantities
and at such places as the
Representative have reasonably requested
for each of the Underwriters;
(f)
the Company has
not distributed and will not distribute, prior to
the later of the last Option Closing Date
or the completion of the Underwriters'
distribution of the Shares, any offering
material in connection with the
offering and sale of the Shares other than
a Preliminary Prospectus, the
Prospectus and the Registration
Statement;
(g)
the Company and
the Subsidiaries are in compliance with all
applicable laws, rules, regulations,
orders, decrees and judgments, including
those relating to transactions with
affiliates except where the failure to be in
compliance would not reasonably be expected
to have a Material Adverse Effect;
(h)
the Company is
not in violation of its Second Articles of Amendment
and Restatement, as amended or restated,
(the "Articles of Amendment") or
Bylaws; the Operating Partnership is not in
violation of its Certificate of
Limited Partnership or the Partnership
Agreement, and no Subsidiary is in
violation of its applicable organizational
documents (including, without
limitation partnership and limited
liability company agreements); neither the
Company nor any Subsidiary is in breach of
or default in (nor to the knowledge
of the Company or any Subsidiary has any
event occurred which with notice, lapse
of time, or both would constitute a breach
of, or default in) the performance or
observance by the Company or any Subsidiary
of any obligation, agreement,
contract, franchise, covenant or condition
contained in any license, indenture,
mortgage, deed of trust, loan or credit
agreement, lease or other agreement or
instrument to which the Company or any
Subsidiary is a party or by which any of
them or their respective properties is
bound except for such breaches or
defaults that,
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individually or in the aggregate, would not
reasonably be expected to have a
Material Adverse Effect;
(i)
the execution,
delivery and performance of this Agreement and the
Acquisition Agreements and the issuance,
sale and delivery by the Company of the
Shares and the consummation of the
transactions contemplated herein and therein
will not (A) conflict with, or result in
any breach or constitute a default (nor
constitute any event which with notice,
lapse of time, or both would constitute
a breach or default) (i) by the Company of
any provision of its Articles of
Amendment or Bylaws, by the Operating
Partnership of any provision under its
Certificate of Limited Partnership or
Partnership Agreement, by any Subsidiary
(excluding the Operating Partnership) of
any provision of its applicable
organizational documents, or (ii) by the
Company or any Subsidiary of any
provision of any obligation, agreement,
contract, franchise, license, indenture,
mortgage, deed of trust, loan or credit
agreement, lease or other agreement or
instrument to which the Company or any
Subsidiary is a party or by which any of
them or their respective properties may be
bound or affected, or (iii) by the
Company or any Subsidiary under any
federal, state, local or foreign law,
regulation or rule or any decree, judgment
or order applicable to the Company or
any Subsidiary except in the case of
clauses (A)(ii) and (A)(iii) above, for
such conflicts, breaches or defaults that,
individually or in the aggregate,
would not reasonably be expected to have a
Material Adverse Effect; or (B)
except as disclosed in the Prospectus,
result in the creation or imposition of
any lien, charge, claim or encumbrance upon
any property or asset of the Company
or any Subsidiary;
(j)
the Company or a
Subsidiary, as applicable, has the full legal
right, corporate power and authority to
enter into this Agreement and the
Acquisition Agreements and to consummate
the transactions contemplated herein
and therein; the Company has the corporate
power to issue, sell and deliver the
Shares as provided herein; this Agreement
and each of the Acquisition Agreements
has been duly authorized, executed and
delivered by the Company and each is a
legal, valid and binding agreement of the
Company enforceable in accordance with
its terms except as enforceability may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting creditors' rights
generally, and by general equitable
principles and except as rights to indemnity
and contribution thereunder may be limited
by applicable law or policies
underlying such law;
(k)
the Operating
Partnership or a Subsidiary, as applicable, has the
full legal right, power and authority to
enter into this Agreement and the
Acquisition Agreements and to consummate
the transactions contemplated herein
and therein; this Agreement and each of the
Acquisition Agreements has been duly
authorized, executed and delivered by the
Operating Partnership or a Subsidiary,
as applicable, and each constitutes the
valid and binding agreement of the
Operating Partnership or a Subsidiary, as
applicable, enforceable against the
Operating Partnership or a Subsidiary, as
applicable, in accordance with its
terms except as enforceability may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting creditor's rights
generally, and by general equitable
principles and except as rights to indemnity
and contribution thereunder may be limited
by applicable law or policies
underlying such law;
(l)
no approval,
authorization, consent or order of, or registration or
filing with any federal, state or local
governmental or regulatory commission,
board, body, authority or agency is
required for the Company's, Operating
Partnership's or a Subsidiary's, as
applicable,
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execution, delivery and performance of this
Agreement and the Acquisition
Agreements and their consummation of the
transactions contemplated herein or
therein, including the sale and delivery of
the Shares, other than (A) such as
have been obtained, or will have been
obtained before the First Closing Date or
the applicable Option Closing Date, as the
case may be, under the Securities Act
and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); (B)
such approvals as have been obtained or
will have been obtained in connection
with the approval of the listing of the
Shares on the New York Stock Exchange;
(C) any necessary qualification under the
securities or blue sky laws of the
various jurisdictions in which the Shares
are being offered by the Underwriters,
the absence of which would not reasonably
be expected to have a Material Adverse
Effect; and (D) with respect to the
Acquisition Agreements, such as have been
obtained, or will have been obtained either
before or after the applicable
closing dates under the Acquisition
Agreements;
(m)
each of the
Company and the Subsidiaries and to the knowledge of the
Company, each tenant or proposed tenant of
the Current Facilities and the
Pending Acquisition Facilities has all
necessary licenses, permits,
authorizations, consents and approvals,
possess valid and current certificates,
has made all necessary filings required
under any federal, state or local law,
regulation or rule, and has obtained all
necessary authorizations, consents and
approvals from other persons, required in
order to conduct their respective
businesses and own their respective
properties and other assets as described in
the Prospectus, except to the extent that
any failure to have any such licenses,
permits, authorizations, consents or
approvals, to make any such filings or to
obtain any such authorizations, consents or
approvals, individually or in the
aggregate, would not reasonably be expected
to have a Material Adverse Effect;
except as disclosed in the Prospectus,
neither the Company nor any of the
Subsidiaries and to the best knowledge of
the Company, each tenant or proposed
tenant of the Current Facilities and the
Pending Acquisition Facilities is
required by any applicable law to obtain
accreditation or certification from any
governmental agency or authority in order
to conduct the business and own the
properties and other assets which it
currently provides or owns or which it
proposes to provide or own as described in
the Prospectus, except such
accreditations and certifications described
in the Prospectus, all of which have
been obtained or, with respect to the
Pending Acquisition Properties, will have
been obtained either before or after the
applicable closing dates under the
Acquisition Agreements; neither the Company
nor any of the Subsidiaries and to
the best knowledge of the Company, each
tenant or proposed tenant of the
Company's facilities and the Pending
Acquisition Facilities is in violation of,
in default under, or has received any
written notice regarding a possible
violation, default or revocation of any
such certificate, license, permit,
authorization, consent or approval or any
federal, state, local or foreign law,
regulation or rule or any decree, order or
judgment applicable to the Company or
any of the Subsidiaries the effect of
which, individually or in the aggregate,
would result in a Material Adverse
Effect;
(n)
each of the
Registration Statement and any Rule 462(b) Registration
Statement has been declared effective under
the Securities Act by the Commission
and no stop order suspending the
effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has
been issued under the Securities Act
and no proceedings for that purpose have
been instituted or are pending or, to
the best knowledge of the Company and the
Operating Partnership, are
contemplated or threatened by the
Commission, and the Company has complied to
the Commission's satisfaction with any
request on the part of the Commission for
additional or supplemental information;
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(o)
the Preliminary
Prospectus and the Registration Statement comply,
and the Prospectus and any further
amendments or supplements thereto will, when
they have become effective or are filed
with the Commission, as the case may be,
comply, in all material respects with the
requirements of the Securities Act and
the Securities Act Regulations; the
Registration Statement did not, and any
amendment thereto will not, in each case as
of the applicable effective date,
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 in
light of the circumstances under which they
were made not misleading; and the
Preliminary Prospectus does not, and the
Prospectus or any amendment or
supplement thereto will not, as of the
applicable filing date and on the First
Closing Date and on each Option Closing
Date (if any), 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, in the light of the
circumstances under which they were made,
not misleading; provided, however,
that the Company makes no warranty or
representation with respect to any
statement contained in the Registration
Statement, the Preliminary Prospectus or
the Prospectus, or any amendments or
supplements thereto, in reliance upon and
in conformity with the information
furnished in writing by or on behalf of the
Underwriters through the Representative to
the Company or any Selling
Stockholder expressly for use in the
Registration Statement or the Prospectus,
or any amendments or supplements thereto
(that information being limited to that
described in the penultimate sentence of
the first paragraph of Section 9(c)
hereof);
(p)
the Preliminary
Prospectus was, and the Prospectus delivered to the
Underwriters for use in connection with
this offering will be, identical to the
versions of the Preliminary Prospectus and
Prospectus transmitted to the
Commission for filing via the Electronic
Data Gathering Analysis and Retrieval
System ("EDGAR"), except to the extent
permitted by Regulation S-T;
(q)
except as
described in the Prospectus, there are no actions, suits
or proceedings pending or, to the knowledge
of the Company and the Operating
Partnership, threatened, and the Company
has not received notice of any pending
investigation or inquiry (i) against or
affecting the Company or any of the
Subsidiaries, or (ii) which has the subject
thereof any of the respective
officers and directors of the Company or
any officers, directors, managers or
partners of its Subsidiaries, or to which
the properties, assets or rights of
any such entity are subject, at law or in
equity, before or by any federal,
state, local or foreign governmental or
regulatory commission, board, body,
authority, arbitral panel or agency, that,
if determined adversely, would
reasonably be expected to result in a
judgment, decree, award or order having a
Material Adverse Effect or would reasonably
be expected to have a Material
Adverse Effect;
(r)
the consolidated
financial statements of the Company and the
Subsidiaries, including the notes thereto,
included in the Registration
Statement and the Prospectus present fairly
the consolidated financial position
of the entities to which such financial
statements relate (the "Covered
Entities") as of the dates indicated and
the consolidated results of operations
and changes in financial position and cash
flows of the Covered Entities for the
periods specified; the supporting schedules
included in the Registration
Statement fairly present the information
required to be stated therein; such
financial statements have been prepared in
conformity with generally accepted
accounting principles as applied in the
United States ("GAAP") and on a
consistent basis during the periods
involved (except as may be expressly stated
in the related
9
<PAGE>
notes thereto) and in accordance with
Regulation S-X promulgated by the
Commission; the financial data set forth in
the Registration Statement and in
the Prospectus under the captions "Summary
- Summary Financial Information,"
"Selected Financial Information," and
"Capitalization" fairly present the
information shown therein and have been
compiled on a basis consistent with the
financial statements included in the
Registration Statement and the Prospectus;
no other financial statements or supporting
schedules are required to be
included in the Registration Statement; no
other pro forma financial information
is required to be included in the
Registration Statement; the unaudited pro
forma financial information (including the
related notes) included in the
Prospectus and any Preliminary Prospectus
complies as to form in all material
respects with the applicable accounting
requirements of the Securities Act and
the Securities Act Regulations, and
management of the Company believes that the
assumptions underlying the pro forma
adjustments are reasonable; such pro forma
adjustments have been properly applied to
the historical amounts in the
compilation of the information and such
information fairly presents with respect
to the Company and the Subsidiaries, the
financial position, results of
operations and other information purported
to be shown therein at the respective
dates and for the respective periods
specified;
(s)
(i) KPMG LLP,
who have audited certain financial statements of the
Company and its consolidated subsidiaries
and expressed their opinions in
reports with respect to the consolidated
financial statements of the Company and
the Subsidiaries filed with the Commission
as part of the Registration Statement
and Prospectus are, and were during the
periods covered by its reports,
independent public accountants with respect
to the Company as required by the
Securities Act and the Securities Act
Regulations and the Exchange Act and the
rules and regulations thereunder (the
"Exchange Act Regulations"); and (ii) to
the Company's and the Operating
Partnership's knowledge, KPMG LLP is not in
violation of the auditor independence
requirements of the Sarbanes-Oxley Act of
2002, as amended, and the rules and
regulations promulgated by the Commission
thereunder (the "Sarbanes-Oxley Act");
(t)
subsequent to
the respective dates as of which information is given
in the Registration Statement and the
Prospectus, and except as may be otherwise
stated in the Registration Statement or
Prospectus, as of the date hereof, there
has not been (A) any Material Adverse
Change or, to the knowledge of the
Company, any development that could
reasonably be expected to result in a
Material Adverse Change, whether or not
arising in the ordinary course of
business, (B) any transaction that is
material to the Company and the
Subsidiaries taken as a whole, contemplated
or entered into by the Company or
any of the Subsidiaries or any material
liability or obligation, indirect,
direct or contingent, not in the ordinary
course of business, (C) any
obligation, contingent or otherwise,
directly or indirectly incurred by the
Company or any Subsidiary that would
reasonably be expected to result in a
Material Adverse Effect or (D) any dividend
or distribution of any kind
declared, paid or made by the Company or,
except for dividends paid to the
Company or other Subsidiaries, any of its
Subsidiaries on any class of its
capital stock or repurchase or redemption
by the Company or any of its
Subsidiaries of any class of capital
stock;
(u)
the Shares
conform in all material respects to the description
thereof contained in the Registration
Statement and the Prospectus;
10
<PAGE>
(v)
there are no
persons with registration or other similar rights to
have any equity or debt securities,
including securities that are convertible
into or exchangeable for equity securities,
registered pursuant to the
Registration Statement or otherwise
registered by the Company under the
Securities Act, (i) except for certain of
the Selling Stockholders, to the
extent of the equity securities to be
offered and sold by such Selling
Stockholders as contemplated by this
Agreement, (ii) except for those
registration or similar rights that have
been waived with respect to the
offering contemplated by this Agreement,
and (iii) except pursuant to or arising
out of that certain Registration Rights
Agreement dated April 7, 2004, all of
which registration or similar rights
described in clauses (i), (ii) and (iii)
are fairly summarized in the Prospectus; no
person has a right of participation
or first refusal with respect to the sale
of the Shares by the Company;
(w)
the issuance and
sale of the Shares by the Company to the
Underwriters hereunder have been duly
authorized by the Company, and, when
issued and duly delivered against payment
therefor as contemplated by this
Agreement, will be validly issued, fully
paid and nonassessable, free and clear
of any pledge, lien, encumbrance, security
interest or other claim created by or
known to the Company, and the issuance and
sale of the Shares by the Company is
not subject to preemptive or other similar
rights arising by operation of law,
under the organizational documents of the
Company or under any agreement to
which the Company or any Subsidiary is a
party or otherwise; except as
contemplated herein or as otherwise
disclosed in the Registration Statement or
the Prospectus, there are no contracts,
agreements or understandings between the
Company and any person or entity granting
such person or entity the right to
require the Company to file a registration
statement under the Securities Act
with respect to any securities of the
Company;
(x)
the Shares have
been registered pursuant to Section 12(b) of the
Exchange Act and the Shares have been
approved for listing on the New York Stock
Exchange, subject only to official notice
of issuance;
(y)
the Company has
not taken, and will not take, directly or
indirectly, any action which is designed to
or which has constituted or which
might reasonably be expected to cause or
result in stabilization or manipulation
of the price of any security of the Company
to facilitate the sale or resale of
the Shares;
(z)
neither the
Company nor any of its affiliates is (i) required to
register as a "broker" or "dealer" in
accordance with the provisions of the
Exchange Act or the Exchange Act
Regulations, (ii) an affiliate of a broker or
dealer or (iii) a person associated with a
member firm of the NASD (within the
meaning of Article I of the Bylaws of the
NASD);
(aa)
the Company has not
relied upon the Representative or legal counsel
for the Underwriters for any legal, tax or
accounting advice in connection with
the offering and sale of the Shares;
(bb)
the form of
certificate used to evidence the Common Stock complies
in all material respects with all
applicable statutory requirements, with any
applicable requirements of the Articles of
Amendment and Bylaws of the Company
and the requirements of the New York Stock
Exchange;
11
<PAGE>
(cc)
the Company and the
Subsidiaries have good and marketable title in
fee simple to all real property, and good
title to all personal property, owned
by them, in each case free and clear of all
liens, security interests, pledges,
charges, encumbrances, encroachments,
restrictions, mortgages and other defects,
except such as are disclosed in the
Prospectus or listed as an exception to any
owner's or leasehold title insurance policy
with respect to such real property
and personal property made available by the
Company to the Underwriters or their
counsel or such as do not materially and
adversely affect the value of such
property and do not materially interfere
with the use made or proposed to be
made of such property by the Company and
the Subsidiaries; any real property,
improvements, equipment and personal
property held under lease by the Company or
any Subsidiary are held under valid,
existing and enforceable leases, with such
exceptions as are disclosed in the
Prospectus or are not material and do not
interfere with the use made or proposed to
be made of such real property,
improvements, equipment or personal
property by the Company or such Subsidiary;
the Company or a Subsidiary has obtained an
owner's or leasehold title insurance
policy, from a title insurance company
licensed to issue such policy, on any
real property owned in fee or leased, as
the case may be, by the Company or any
Subsidiary, that insures the Company's or
the Subsidiary's fee or leasehold
interest, as the case may be, in such real
property, which policies include only
commercially reasonable exceptions, and
with coverages in amounts at least equal
to amounts that are generally deemed in the
Company's industry to be
commercially reasonable in the markets
where the Company's properties are
located, or a lender's title insurance
policy insuring the lien of its mortgage
securing the real property with coverage
equal to the maximum aggregate
principal amount of any indebtedness held
by the Company or a Subsidiary and
secured by the real property;
(dd)
to the knowledge of
the Company, all real property owned or leased
by the Company or any Subsidiary, including
the Current Facilities, whether
owned in fee simple or through a joint
venture or other partnership, (each, a
"Property" and collectively "Properties"),
is free of any material structural
defects and all building systems contained
therein are in good working order in
all material respects, subject to ordinary
wear and tear or, in each instance,
the Company or any Subsidiary, as the case
may be, has created or caused to be
created an adequate reserve or capital
budget to effect reasonably required
repairs, maintenance and capital
expenditures; water, storm water, sanitary
sewer, electricity and telephone service
are all available at the property lines
of such property over duly dedicated
streets or perpetual easements of record
benefiting such property; the Company has
not received any notice of any pending
or threatened special assessment, tax
reduction proceeding or other action that
could reasonably be expected to have a
Material Adverse Effect;
(ee)
each of the properties
listed in the Prospectus as a property with
respect to which the Company or one of its
Subsidiaries has a leasehold interest
is the subject of a lease that has been
duly and validly authorized, executed
and delivered by or on behalf of the
Company or a Subsidiary, and to the
knowledge of the Company, by each of the
other parties thereto and each such
lease constitutes a valid and binding
agreement of the parties thereto,
enforceable in accordance with its terms,
except as enforceability may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting creditors' rights generally or by
general principles of equity;
12
<PAGE>
(ff)
the descriptions in
the Registration Statement and the Prospectus of
legal or governmental proceedings,
contracts, leases and other legal documents
therein described present fairly in all
material respects the information
required to be disclosed, and there are no
legal or governmental proceedings,
contracts, leases, or other documents of a
character required to be described in
the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement that are not
described or filed as required; all
agreements between the Company or any of
the Subsidiaries and third parties
expressly referenced in the Registration
Statement and the Prospectus are legal,
valid and binding obligations of the
Company or one or more of the Subsidiaries,
enforceable in accordance with their
respective terms, except to the extent
enforceability may be limited by
bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting
creditors' rights generally and by general
equitable principles;
(gg)
there are no real
property interests or loans in respect of real
property that any of the Company and the
Subsidiaries directly or indirectly
intends to acquire, lease, originate or
underwrite or any contracts, letters of
intent, term sheets, agreements,
arrangements or understandings with respect to
the direct or indirect acquisition,
disposition, origination or underwriting by
the Company or the Subsidiaries of
interests in real property or loans in
respect of real property that are required
to be described in the Registration
Statement or the Prospectus and are not so
described;
(hh)
the Company and each
Subsidiary owns or possesses, adequate and
sufficient licenses or other rights to use
all patents, trademarks, service
marks, trade names, copyrights, domain
names, software and design licenses,
approvals, trade secrets, manufacturing
processes, other intangible property
rights and know-how (collectively
"Intellectual Property Rights") necessary to
entitle the Company and each Subsidiary to
conduct its business as described in
the Prospectus; neither the Company nor any
Subsidiary has received notice of
infringement of or conflict with (and the
Company knows of no such infringement
of or conflict with) asserted rights of
others with respect to any Intellectual
Property Rights which would reasonably be
expected to have a Material Adverse
Effect; neither the Company nor any
Subsidiary is a party to or bound by any
options, licenses or agreements with
respect to the Intellectual Property Rights
of any other person or entity that are
required to be set forth in the
Prospectus and are not described as
required in all material respects;
(ii)
the Company and each
of the Subsidiaries maintain a system of
internal accounting controls sufficient to
provide reasonable assurance that (i)
transactions are executed in accordance
with management's general or specific
authorizations; (ii) transactions are
recorded as necessary to permit
preparation of financial statements in
conformity with generally accepted
accounting principles as applied in the
United States and to maintain
accountability for assets; (iii) access to
assets is permitted only in
accordance with management's general or
specific authorization; (iv) the
recorded accountability for assets is
compared with the existing assets at
reasonable intervals and appropriate action
is taken with respect to any
differences; (v) management is made aware
of all material transactions
concerning the Company or its properties;
and (vi) the Company qualifies as a
REIT under the requirements of the
Code;
(jj)
each of the Company,
the General Partner, and the Subsidiaries has
filed on a timely basis (including in
accordance with any applicable extensions)
all necessary federal, state, local and
foreign income and franchise tax returns
required to be filed through the date
hereof or
13
<PAGE>
have properly requested extensions thereof,
and have paid all taxes shown as due
thereon, and if due and payable, any
related or similar assessment, fine or
penalty levied against the Company, the
General Partner, or any of the
Subsidiaries; no tax deficiency has been
asserted against any such entity, nor
does the Company or any of the Subsidiaries
know of any tax deficiency which is
likely to be asserted against any such
entity; all tax liabilities are
adequately provided for on the respective
books of such entities;
(kk)
each of the Company
and the Subsidiaries maintains insurance, issued
by insurers of recognized financial
responsibility, of the types and with
policies in such amounts and with such
deductibles and covering such risks as
are generally deemed adequate for their
respective businesses and properties,
and to the knowledge of the Company,
consistent with insurance coverage
maintained by similar companies in similar
businesses, which insurance is in
full force and effect; the Company has no
reason to believe that it or any
Subsidiary will not be able (i) to renew
its existing insurance coverage as and
when such policies expire or (ii) to obtain
comparable coverage from similar
institutions as may be necessary or
appropriate to conduct its business as now
conducted; neither of the Company nor any
Subsidiary has been denied any
insurance coverage which it has sought or
for which it has applied;
(ll)
except as otherwise
disclosed in the Prospectus, (i) none of the
Company or any of the Subsidiaries nor, to
the knowledge of the Company, any
other owners or tenants of the Current
Properties or the Pending Acquisition
Properties has used, handled, stored,
treated, transported, manufactured,
spilled, leaked, or discharged, dumped,
transferred or otherwise disposed of or
dealt with, Hazardous Materials (as defined
below) on, in, under or affecting
any real property currently leased or owned
by the Company or any of the
Subsidiaries (collectively, the "Real
Property"), except in connection with the
ordinary use of residential, retail,
commercial or healthcare properties owned
by the Subsidiaries; (ii) the Company and
the Subsidiaries do not intend to use
the Real Property or any subsequently
acquired properties for the purpose of
using, handling, storing, treating,
transporting, manufacturing, spilling,
leaking, discharging, dumping, transferring
or otherwise disposing of or dealing
with Hazardous Materials other than in
connection with the ordinary use of
residential, retail, commercial or
healthcare properties owned by the
Subsidiaries; (iii) none of the Company or
the Subsidiaries has received any
notice of, or has any knowledge of, any
occurrence or circumstance which, with
notice or passage of time or both, would
give rise to a claim under or pursuant
to any federal, state or local
environmental statute or regulation or under
common law, pertaining to Hazardous
Materials on or originating from any of the
Real Property, including without limitation
a claim under or pursuant to any
Environmental Statute (as hereinafter
defined); (v) the Real Property is not
included or, to the knowledge of the
Company, proposed for inclusion on the
National Priorities List issued pursuant to
CERCLA (as defined below) by the
United States Environmental Protection
Agency (the "EPA") or, to the Operating
Partnership's and the Company's knowledge,
proposed for inclusion on any similar
list or inventory issued pursuant to any
other Environmental Statute or issued
by any other Governmental Authority (as
defined below); in the operation of the
Company's businesses, the Company obtains
Phase I Environmental Audits with
respect to Real Properties as described in
the Prospectus;
As used
herein, "Hazardous Material" shall include, without limitation,
any flammable explosive, radioactive
material, hazardous substance, hazardous
material, hazardous waste, toxic substance,
asbestos or related material, as
defined by any federal, state or local
environmental
14
<PAGE>
law, ordinance, rule or regulation
including without limitation, the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. Sections 9601-9675
("CERCLA"), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C.
Sections 1801-1819, the Resource
Conservation and Recovery Act, as amended,
42 U.S.C. Sections 6901-6992K, the
Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. Sections
11001-11050, the Toxic Substances Control
Act, 15 U.S.C. Sections 2601-2671, the
Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Sections 136-136y,
the Clean Air Act, 42 U.S.C. Sections
7401-7642, the Clean Water Act (Federal
Water Pollution Control Act), 33 U.S.C.
Sections 1251-1387, the Safe Drinking
Water Act, 42 U.S.C. Sections 300f-300j-26,
and the Occupational Safety and
Health Act, 29 U.S.C. Sections 651-678, as
any of the above statutes may be
amended from time to time, and in the
regulations promulgated pursuant to each
of the foregoing (individually, an
"Environmental Statute") or by any federal,
state or local governmental authority
having or claiming jurisdiction over the
properties and assets described in the
Prospectus (a "Governmental Authority");
(mm)
to the knowledge of
the Company, there are no costs or liabilities
associated with any Environmental Statute
(including, without limitation, any
capital or operating expenditures required
for clean-up, closure of properties
or compliance with any Environmental
Statute or any permit, license or approval,
any related constraints on operating
activities and any potential liabilities to
third parties) which, individually or in
the aggregate, would reasonably be
expected to have a Material Adverse
Effect;
(nn)
to the knowledge of
the Company, none of the entities which prepared
appraisals of the Real Property, nor the
entities which prepared Phase I or
other environmental assessments with
respect to the Real Property, was employed
for such purpose on a contingent basis or
has any substantial interest in the
Company or any of the Subsidiaries, and
none of their directors, officers or
employees is connected with the Company or
any of the Subsidiaries as a
promoter, selling agent, officer, director
or employee;
(oo)
neither the Company
nor any Subsidiary is in violation of or has
received notice of any violation with
respect to any federal or state law, rule
or regulation, including without limitation
any federal or state law relating to
discrimination in the hiring, termination,
promotion, terms or conditions of
employment or pay of employees, nor any
applicable federal or state wages and
hours law, the violation of, individually
or in the aggregate would reasonably
be expected to have a Material Adverse
Effect;
(pp)
the Company, the
Subsidiaries and their "ERISA Affiliates" (as
defined below) and any "employee benefit
plan" (as defined under the Employee
Retirement Income Security Act of 1974, as
amended, and the regulations and
published interpretations thereunder
(collectively, "ERISA")) established or
maintained by the Company, the Subsidiaries
or their ERISA Affiliates or to
which the Company, the Subsidiaries or
their ERISA Affiliates contribute or are
required to contribute are in compliance in
all material respects with ERISA;
"ERISA Affiliate" means any trade or
business, whether or not incorporated,
which with the Company or a Subsidiary is
treated as a single employer under
Section 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as
amended, and the rules and regulations
promulgated thereunder and the
corresponding provisions of state income
tax codes (the "Code"); no such
employee benefit plan is subject to Section
412 of the Code, Section 302 of
ERISA or Title IV of ERISA; all
15
<PAGE>
contributions required to have been made
under each such employee benefit plan
have been made on a timely basis; there has
been no "prohibited transaction" (as
defined in Section 4975 of the Code or
Section 406 or 407 of ERISA) for which
the Company, the Subsidiaries or their
ERISA Affiliates have any liability; each
such employee benefit plan that is intended
to be qualified under Section 401(a)
of the Code is so qualified and nothing has
occurred, whether by action or
failure to act, which would reasonably be
expected to cause the loss of such
qualification;
(qq)
neither the Company
nor any of the Subsidiaries nor any officer
purporting to act on behalf of the Company
or any of the Subsidiaries nor, to
the Company's knowledge, any director,
manager, employee or other representative
purporting to act on behalf of the Company
or any of the Subsidiaries has at any
time (i) made any contributions to any
candidate for political office, or failed
to disclose fully any such contributions,
in violation of law, (ii) made any
payment to any state, federal or foreign
governmental officer or official, or
other person charged with similar public or
quasi-public duties, other than
payments required or allowed by applicable
law or (iii) engaged in any
transactions, maintained any bank account
or used any corporate funds except for
transactions, bank accounts and funds which
have been and are reflected in the
normally maintained books and records of
the Company and the Subsidiaries;
(rr)
there are no material
outstanding loans or advances or material
guarantees of indebtedness by the Company
or any of the Subsidiaries to or for
the benefit of any of the officers,
directors, managers or directors of the
Company or any of the Subsidiaries or any
of the members of the families of any
of them;
(ss)
there is and has been
no failure on the part of the Company or any
of the Company's directors or officers, in
their capacities as such, to comply
with any provision of the Sarbanes-Oxley
Act of 2002, as amended, including
Section 402 related to loans and Sections
302 and 906 related to certifications
to the extent such provisions are
applicable to the Company;
(tt)
neither the Company
nor any of its Subsidiaries nor, to the
knowledge of the Company, any director,
officer, agent, employee or affiliate of
the Company or any of its Subsidiaries is
aware of or has taken any action,
directly or indirectly, that would result
in a violation by such Persons of the
FCPA, including, without limitation, making
use of the mails or any means or
instrumentality of interstate commerce
corruptly in furtherance of an offer,
payment, promise to pay or authorization of
the payment of any money, or other
property, gift, promise to give, or
authorization of the giving of anything of
value to any "foreign official" (as such
term is defined in the FCPA) or any
foreign political party or official thereof
or any candidate for foreign
political office, in contravention of the
FCPA and the Company, its
Subsidiaries, and to the knowledge of the
Company, its affiliates have conducted
their businesses in compliance with the
FCPA and have instituted and maintain
policies and procedures designed to ensure,
and which are reasonably expected to
continue to ensure, continued compliance
therewith. "FCPA" means Foreign Corrupt
Practices Act of 1977, as amended, and the
rules and regulations thereunder;
(uu)
the operations of the
Company and its Subsidiaries are and have been
conducted at all times in compliance with
applicable financial recordkeeping and
reporting requirements of
16
<PAGE>
the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the
money laundering statutes of all
jurisdictions, the rules and regulations
thereunder and any related or similar
rules, regulations or guidelines, issued,
administered or enforced by any
governmental agency (collectively, the "Money
Laundering Laws") and no action, suit or
proceeding by or before any court or
governmental agency, authority or body or
any arbitrator involving the Company
or any of its Subsidiaries with respect to
the Money Laundering Laws is pending
or, to the best knowledge of the Company,
threatened;
(vv)
neither the Company
nor any of its Subsidiaries nor, to the
knowledge of the Company, any director,
officer, agent, employee or affiliate of
the Company or any of its Subsidiaries is
currently subject to any U.S.
sanctions administered by the Office of
Foreign Assets Control of the U.S.
Treasury Department ("OFAC"); and the
Company will not directly or indirectly
use the proceeds of the offering, or lend,
contribute or otherwise make
available such proceeds to any subsidiary,
joint venture partner or other person
or entity, for the purpose of financing the
activities of any person currently
subject to any U.S. sanctions administered
by OFAC;
(ww)
except as disclosed in
the Registration Statement and the
Prospectus, the Company (i) does not have
any material lending or other
relationship with any bank or lending
affiliate of any Underwriter and (ii) does
not intend to use any of the proceeds from
the sale of the Shares hereunder to
repay any outstanding debt owed to any
affiliate of any Underwriter;
(xx)
neither the Company
nor any of the Subsidiaries nor, to the
knowledge of the Company or the Operating
Partnership, any officer, director,
employee or agent of the Company or any of
the Subsidiaries, has made any
payment of funds of the Company or of any
Subsidiary or received or retained any
funds in violation of any law, rule or
regulation or of a character required to
be disclosed in the Prospectus and which
has not been properly described
therein;
(yy)
all securities issued
by the Company, any of the Subsidiaries or any
trusts established by the Company or any
Subsidiary, have been issued and sold
in compliance with (i) all applicable
federal and state securities laws, (ii)
the laws of the applicable jurisdiction of
incorporation of the issuing entity
and, (iii) to the extent applicable to the
issuing entity, the requirements of
the New York Stock Exchange;
(zz)
the Company has fairly
summarized in the Prospectus all material
options and rights of first refusal to
purchase all or part of any Real Property
or any interest therein; to the knowledge
of the Company, each of the Real
Properties complies with all applicable
zoning laws, ordinances, regulations and
deed restrictions or other covenants in all
material respects or, if and to the
extent there is a failure to comply, such
failure does not materially impair the
value of any of the Real Properties and
will not result in a forfeiture or
reversion of title; to the knowledge of the
Company, there is no pending or
threatened condemnation, zoning change or
other similar proceeding or action
that will in any material respect affect
the size or use of, improvements on, or
construction on or access to the
Properties, except such zoning changes,
proceedings or actions that individually or
in the aggregate would not
reasonably be expected to have a Material
Adverse Effect; all liens, charges,
encumbrances, claims, or restrictions on or
affecting the properties and assets
(including the Properties) of the Operating
Partnership or any of the
Subsidiaries that are required to be
described in the Prospectus (or, the most
recent
17
<PAGE>
Preliminary Prospectus) are disclosed
therein; to the knowledge of the Company,
no lessee of any portion of any of the
Properties is in default under any of the
leases governing such properties and there
is no event which, but for the
passage of time or the giving of notice or
both would constitute a default under
any of such leases, except such defaults
that would not reasonably be expected
to have a Material Adverse Effect; and
except as disclosed in the Registration
Statement and the Prospectus, no tenant
under any lease pursuant to which any of
the Subsidiaries leases the Real Properties
has an option or right of first
refusal to purchase the prem
