Exhibit 10.2
PURCHASE AGREEMENT
among
Extra Space Storage
LP
ESS Statutory Trust
III,
and
Merrill Lynch
International
Dated as of July 27, 2005
PURCHASE AGREEMENT
($15,000,000 Trust Preferred
Securities)
THIS PURCHASE AGREEMENT, dated as of
July 27, 2005, (this “ Purchase Agreement ”), is
entered into among Extra Space Storage LP, a Delaware limited
partnership (the “ Company ”), ESS Statutory
Trust III, a Delaware statutory trust (the “ Trust
”, and together with the Company, the “ Sellers
”), Merrill Lynch International (“MLI”) or its
assignee (the “ Purchaser ”).
W I T N E S S E T H :
WHEREAS, the Sellers propose to
issue and sell 40,000 Preferred Securities of the Trust, having a
stated liquidation amount of $1,000 per security (the “
Preferred Securities ”);
WHEREAS, the entire proceeds from
the sale of the Preferred Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of its
common securities (the “ Common Securities ”),
and will be used by the Trust to purchase $41,238,000 in principal
amount of the unsecured junior subordinated notes of the Company
(the “ Junior Subordinated Notes ”);
WHEREAS, the Preferred Securities
and the Common Securities for the Trust will be issued pursuant to
the Amended and Restated Trust Agreement (the “ Trust
Agreement ”), dated as of the Closing Date, among the
Company, as depositor, JPMorgan Chase Bank, National Association, a
national banking association, as property trustee (in such
capacity, the “ Property Trustee ”), Chase Bank
USA, National Association, a national banking association, as
Delaware trustee (in such capacity, the “ Delaware
Trustee ”), the Administrative Trustees named therein (in
such capacities, the “ Administrative Trustees
”) and the holders from time to time of undivided beneficial
interests in the assets of the Trust; and
WHEREAS, the Junior Subordinated
Notes will be issued pursuant to a Junior Subordinated Indenture,
dated as of the Closing Date (the “ Indenture
”), between the Company and JPMorgan Chase Bank, National
Association, a national banking association, as indenture trustee
(in such capacity, the “ Indenture Trustee
”).
NOW, THEREFORE, in consideration of
the mutual agreements and subject to the terms and conditions
herein set forth, the parties hereto agree as follows:
1. Definitions . The
Preferred Securities, the Common Securities and the Junior
Subordinated Notes are collectively referred to herein as the
“ Securities .” This Purchase Agreement, the
Indenture, the Trust Agreement and the Securities are collectively
referred to herein as the “ Operative Documents
.” All other capitalized terms used but not defined in this
Purchase Agreement shall have the respective meanings ascribed
thereto in the Indenture.
2. Purchase and Sale of the
Preferred Securities .
(a) The Sellers agree to sell to the
Purchaser, and the Purchaser agrees to purchase the preferred
securities for an aggregate amount equal to $15,000,000 (the
“ Purchase Price ”). The Purchaser shall be
responsible for the rating agency costs and expenses. The Trust
shall use the Purchase Price, together with the proceeds from the
sale of the Common Securities, to purchase the Junior Subordinated
Notes from the Company.
(b) Delivery or transfer of, and
payment for, the Preferred Securities shall be made at 11:00 A.M.
Eastern Standard time (11:00 A.M. New York time), on July 27, 2005,
(such date and time of delivery and payment for the Preferred
Securities being herein called the “ Closing Date
”). The Preferred Securities shall be transferred and
delivered to the Purchaser against the payment of the Purchase
Price to the Sellers made by wire transfer in immediately available
funds on the Closing Date to a U.S. account designated in writing
by the Company at least two business days prior to the Closing
Date.
(c) Delivery of the Preferred
Securities shall be made at such location, and in such names and
denominations, as the Purchaser shall designate in writing at least
two business days in advance of the Closing Date. The Company and
the Trust agree to have the Preferred Securities available for
inspection and checking by the Purchaser not later than 2:00 P.M.,
Eastern Standard time, on the business day prior to the Closing
Date. The closing for the purchase and sale of the Preferred
Securities shall occur at the offices of DLA Piper Rudnick Gray
Cary US LLP, 1221 S. Mopac Expressway, Suite 400, Austin, Texas
78746 or such other place as the parties hereto shall
agree.
3. Conditions . The
obligations of the parties under this Purchase Agreement are
subject to the following conditions:
(a) The representations and
warranties contained herein shall be accurate as of the date of
delivery of the Preferred Securities.
(b) Latham & Watkins LLP and
Nelson Christensen & Helsten, P.C., special counsel for the
Company and the Trust (collectively, the “ Company
Counsel ”), shall each have delivered an opinion, dated
the Closing Date, addressed to the Purchaser, Cohen Bros. &
Company and JPMorgan Chase Bank, National Association, in
substantially the form set out in Annex A-I and Annex
A-II hereto, respectively, and the Company shall have
furnished to the Purchaser the opinion of the Company’s
General Counsel or a certificate signed by the Company’s
general partner, dated the Closing Date, addressed to the
Purchaser, in substantially the form set out in Annex A-III
hereto. In rendering their opinions, the Company Counsel may rely
as to factual matters upon certificates or other documents
furnished by officers, directors, partners and trustees of the
Company and the Trust and by government officials (provided,
however, that copies of any such certificates or documents are
delivered to the Purchaser) and by and upon such other documents as
such counsel may, in their reasonable opinions, deem appropriate as
a basis for the Company Counsel’s opinion. The Company
Counsel may specify the jurisdictions in which they are admitted to
practice and that they are not admitted to practice in any other
jurisdiction and are not experts in the
law of any other jurisdiction. If the Company
Counsel are not admitted to practice in the State of New York, the
opinions of the Company Counsel may assume, for purposes of the
opinions, that the laws of the State of New York are substantively
identical, in all respects material to the opinions, to the
internal laws of the state in which such counsel are admitted to
practice. Such Company Counsel opinions shall not state that they
are to be governed or qualified by, or that they are otherwise
subject to, any treatise, written policy or other document relating
to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
(c) The Purchaser and the Sellers
shall have been furnished the opinion of DLA Piper Rudnick Gray
Cary US LLP, special tax counsel for the Purchaser, dated the
Closing Date, addressed to the Purchaser and JPMorgan Chase Bank,
National Association, in substantially the form set out in Annex
B hereto.
(d) The Purchaser shall have
received the opinion of Richards, Layton & Finger, P.A.,
special Delaware counsel for the Delaware Trustee, dated the
Closing Date, addressed to the Purchaser, JPMorgan Chase Bank,
National Association, the Delaware Trustee and the Company, in
substantially the form set out in Annex C hereto.
(e) The Purchaser shall have
received the opinion of Gardere Wynne Sewell LLP, special counsel
for the Property Trustee and the Indenture Trustee, dated the
Closing Date, addressed to the Purchaser, in substantially the form
set out in Annex D hereto.
(f) The Purchaser shall have
received the opinion of Richards, Layton & Finger, P.A.,
special Delaware counsel for the Delaware Trustee, dated the
Closing Date, addressed to the Purchaser and JPMorgan Chase Bank,
National Association, in substantially the form set out in Annex
E hereto.
(g) The Company shall have furnished
to the Purchaser a certificate of the Company, signed by the
general partner of the Company, and the Trust shall have furnished
to the Purchaser a certificate of the Trust, signed by an
Administrative Trustee of the Trust, in each case dated the Closing
Date, and, in the case of the Company, as to (i) and (ii) below
and, in the case of the Trust, as to (i) below.
(i) the representations and
warranties in this Purchase Agreement are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Company and the
Trust have in all material respects complied with all the
agreements and satisfied all the conditions on either of their part
to be performed or satisfied at or prior to the Closing Date;
and
(ii) since the date of the latest
Financial Statements (as defined below), there has been no material
adverse change in the condition (financial or other), earnings,
business or assets of the Company and its subsidiaries, whether or
not arising from transactions occurring in the ordinary course of
business (a “ Material Adverse Change
”).
(h) Subsequent to the execution of
this Purchase Agreement, there shall not have been any change, or
any development involving a prospective change, in or affecting the
condition (financial or other), earnings, business or assets of the
Company and its subsidiaries, whether or not occurring in the
ordinary course of business, the effect of which is, in the
Purchaser’s reasonable judgment, so material and adverse as
to make it impractical or inadvisable to proceed with the purchase
of the Preferred securities.
(i) Prior to the Closing Date, the
Company and the Trust shall have furnished to the Purchaser and its
counsel such further information, certificates and documents as the
Purchaser or its counsel may reasonably request.
If any of the conditions specified
in this Section 3 shall not have been fulfilled when and as
provided in this Purchase Agreement, or if any of the opinions,
certificates and documents mentioned above or elsewhere in this
Purchase Agreement shall not be reasonably satisfactory in form and
substance to the Purchaser or its counsel, this Purchase Agreement
and all the Purchaser’s obligations hereunder may be canceled
at, or at any time prior to, the Closing Date by the Purchaser.
Notice of such cancellation shall be given to the Company and the
Trust in writing or by telephone or facsimile confirmed in
writing.
Each certificate signed by any
trustee of the Trust or any officer or partner of the Company and
delivered to the Purchaser or the Purchaser’s counsel in
connection with the Operative Documents and the transactions
contemplated hereby and thereby shall be deemed to be a
representation and warranty of the Trust and/or the Company, as the
case may be, and not by such trustee, officer or partner in any
individual capacity.
4. Representations and
Warranties of the Company and the Trust . The Company and
the Trust jointly and severally represent and warrant to, and agree
with the Purchaser, as follows:
(a) Neither the Company nor the
Trust, nor any of their “Affiliates” (as defined in
Rule 501(b) of Regulation D (“ Regulation D ”)
under the Securities Act (as defined below)), nor any person acting
on its or their behalf, has, directly or indirectly, made offers or
sales of any security, or solicited offers to buy any security,
under circumstances that would require the registration of any of
the Securities under the Securities Act of 1933, as amended (the
“ Securities Act ”).
(b) Neither the Company nor the
Trust, nor any of their Affiliates, nor any person acting on its or
their behalf, has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D) in
connection with any offer or sale of any of the
Securities.
(c) The Securities (i) are not and
have not been listed on a national securities exchange registered
under Section 6 of the Securities Exchange Act of 1934, as amended
(the “ Exchange Act ”), or quoted on a U.S.
automated inter-dealer quotation system and (ii) assuming the
Purchaser is a “Qualified Purchaser” as such term is
defined in Section 2(a)(51) of the Investment Company Act of 1940,
as amended (the “Investment
Company Act ”), are not of an open-end investment
company, unit investment trust or face-amount certificate company
that are, or are required to be, registered under Section 8 of the
Investment Company Act, and the Securities otherwise satisfy the
eligibility requirements of Rule 144A(d)(3) promulgated pursuant to
the Securities Act (“ Rule 144A(d)(3)
”).
(d) Neither the Company nor the
Trust, nor any of their Affiliates, nor any person acting on its or
their behalf, has engaged, or will engage, in any “directed
selling efforts” within the meaning of Regulation S under the
Securities Act with respect to the Securities.
(e) Assuming the Purchaser is a
“Qualified Purchaser” as such term is defined in
Section 2(a)(51) of the Investment Company Act, neither the Company
nor the Trust is, and, immediately following consummation of the
transactions contemplated hereby and the application of the net
proceeds therefrom, will not be, an “investment
company” or an entity “controlled” by an
“investment company,” in each case within the meaning
of section 3(a) of the Investment Company Act.
(f) Neither the Company nor the
Trust has paid or agreed to pay to any person any compensation for
soliciting another to purchase any of the Securities, except for
the Preferred Securities Commission and/or the sales commission in
the aggregate amount of $1,200,000, the which Company has agreed to
pay as set forth in the Flow of Funds Memorandum of even date
herewith.
(g) The Trust has been duly created
and is validly existing in good standing as a statutory trust under
the Delaware Statutory Trust Act, 12 Del. C. §3801, et
seq . (the “ Statutory Trust Act ”) with all
requisite power and authority to own property and to conduct the
business it transacts and proposes to transact and to enter into
and perform its obligations under the Operative Documents to which
it is a party. The Trust is duly qualified to transact business as
a foreign entity and is in good standing in each jurisdiction in
which such qualification is necessary, except where the failure to
so qualify or be in good standing would not have a material adverse
effect on the condition (financial or otherwise), earnings,
business or assets of the Trust, whether or not occurring in the
ordinary course of business. The Trust is not a party to or
otherwise bound by any agreement other than the Operative
Documents.
(h) The Trust Agreement has been
duly authorized by the Company and, on the Closing Date specified
in Section 2(b) , will have been duly executed and delivered
by the Company and the Administrative Trustees of the Trust, and,
assuming due authorization, execution and delivery by the Property
Trustee and the Delaware Trustee, will be a legal, valid and
binding obligation of the Company and the Administrative Trustees,
enforceable against them in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar law, affecting
creditors’ rights generally and to general principles of
equity. Each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company
to execute and deliver the Trust Agreement.
(i) The Indenture has been duly
authorized by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company, and,
assuming
due authorization, execution and delivery by the
Indenture Trustee, will be a legal, valid and binding obligation of
the Company enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and to general
principles of equity.
(j) The Preferred Securities and the
Common Securities have been duly authorized by the Trust and, when
issued and delivered against payment therefor on the Closing Date
in accordance with this Purchase Agreement, in the case of the
Preferred Securities, and in accordance with the Common Securities
Subscription Agreement, in the case of the Common Securities, will
be validly issued, fully paid and non-assessable and will represent
undivided beneficial interests in the assets of the Trust entitled
to the benefits of the Trust Agreement, enforceable against the
Trust in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’
rights generally and to general principles of equity. The issuance
of the Securities is not subject to any preemptive or other similar
rights. On the Closing Date, all of the issued and outstanding
Common Securities will be directly or indirectly owned by the
Company free and clear of any pledge, security interest, claim,
lien or other encumbrance of any kind (each, a “ Lien
”).
(k) The Junior Subordinated Notes
have been duly authorized by the Company and, on the Closing Date,
will have been duly executed and delivered to the Indenture Trustee
for authentication in accordance with the Indenture and, when
authenticated in the manner provided for in the Indenture and
delivered to the Trust against payment therefor in accordance with
the Junior Subordinated Note Purchase Agreement, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in
accordance with their terms, subject to applicable bankruptcy
insolvency and similar laws affecting creditors’ rights
generally and to general principles of equity.
(l) This Purchase Agreement has been
duly authorized, executed and delivered by the Company and the
Trust.
(m) Neither the issue and sale of
the Common Securities, the Preferred Securities or the Junior
Subordinated Notes, nor the purchase of the Junior Subordinated
Notes by the Trust, nor the execution and delivery of and
compliance with the Operative Documents by the Company or the
Trust, nor the consummation of the transactions contemplated herein
or therein, (i) will conflict with or constitute a violation or
breach of (A) the Trust Agreement or the charter or bylaws or other
organizational documents of the Company or any subsidiary of the
Company or (B) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, governmental
authority, agency or instrumentality or court, domestic or foreign,
having jurisdiction over the Trust or the Company or any of its
subsidiaries or their respective properties or assets
(collectively, the “ Governmental Entities ”),
or (ii) will conflict with or constitute a violation or breach of,
or a default or Repayment Event (as defined below) under, or result
in the creation or imposition of any Lien upon any property or
assets of the Trust, the Company or any of the Company’s
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which
(A) the Trust, the Company or any of its subsidiaries
is a party or by which it or any of them may be
bound, or (B) to which any of the property or assets of any of them
is subject, or any judgment, order or decree of any court,
Governmental Entity or arbitrator, except, in the case of this
clause (ii) and clause (i)(B) above, for such conflicts, breaches,
violations, defaults, Repayment Events (as defined below) or Liens
which (X) would not, singly or in the aggregate, adversely affect
the consummation of the transactions contemplated by the Operative
Documents and (Y) would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business, liabilities and assets of the Company and its
subsidiaries taken as a whole, whether or not occurring in the
ordinary course of business (a “ Material Adverse
Effect ”). As used herein, a “ Repayment
Event ” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Trust or the Company or any of its
subsidiaries prior to its scheduled maturity.
(n) The Company has been duly formed
and is validly existing as a partnership in good standing under the
laws of Delaware, with all requisite power and authority to own,
lease and operate its properties and conduct the business it
transacts and proposes to transact, and is duly qualified to
transact business and is in good standing in each jurisdiction
where the nature of its activities requires such qualification,
except where the failure of the Company to be so qualified would
not, singly or in the aggregate, have a Material Adverse
Effect.
(o) The Company has no subsidiaries
that are material to its business, financial condition or earnings
other than those subsidiaries listed in Schedule A attached
hereto (collectively, the “ Significant Subsidiaries
”). Each Significant Subsidiary has been duly formed and is
validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized, with all
requisite power and authority to own, lease and operate its
properties and conduct the business it transacts and proposes to
transact. Each Significant Subsidiary is duly qualified to transact
business and is in good standing in each jurisdiction where the
nature of its activities requires such qualification, except where
the failure to be so qualified would not, singly or in the
aggregate, have a Material Adverse Effect.
(p) Each of the Trust, the Company
and each of the Company’s subsidiaries hold all necessary
approvals, authorizations, orders, licenses, consents,
registrations, qualifications, certificates and permits
(collectively, the “ Governmental Licenses ”) of
and from Governmental Entities necessary to conduct their
respective businesses as now being conducted, and neither the
Trust, the Company nor any of the Company’s subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Government License, except where the
failure to be so licensed or approved or the receipt of an
unfavorable decision, ruling or finding, would not, singly or in
the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except where the invalidity or the failure of such Governmental
Licenses to be in full force and effect, would not, singly or in
the aggregate, have a Material Adverse Effect; and the Company and
its subsidiaries are in compliance with all applicable laws,
rules,
regulations, judgments, orders, decrees and
consents, except where the failure to be in compliance would not,
singly or in the aggregate, have a Material Adverse
Effect.
(q) All of the issued and
outstanding shares of capital stock or other ownership interest, as
the case may be, of the Company and each of its subsidiaries are
validly issued, fully paid and non-assessable; all of the issued
and outstanding capital stock or other ownership interests of each
subsidiary of the Company is owned by the Company, directly or
through subsidiaries, free and clear of any Lien, claim or
equitable right; and none of the issued and outstanding capital
stock or other ownership interests of the Company or any subsidiary
was issued in violation of any preemptive or similar rights arising
by operation of law, under the charter or by-laws or other
organizational documents of such entity or under any agreement to
which the Company or any of its subsidiaries is a party.
(r) Neither the Company nor any of
its subsidiaries is (i) in violation of its respective charter or
by-laws or similar organizational documents or (ii) in default in
the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any such subsidiary is a party
or by which it or any of them may be bound or to which any of the
property or assets of any of them is subject, except, in the case
of clause (ii), where such violation or default would not, singly
or in the aggregate, have a Material Adverse Effect.
(s) There is no action, suit or
proceeding before or by any Governmental Entity, arbitrator or
court, domestic or foreign, now pending or, to the knowledge of the
general partner of the Company or the administrative trustees of
the Trust, threatened against or affecting the Trust or the Company
or any of the Company’s subsidiaries, except for such
actions, suits or proceedings that, if adversely determined, would
not, singly or in the aggregate, adversely affect the consummation
of the transactions contemplated by the Operative Documents or have
a Material Adverse Effect.
(t) The accountants of Extra Space
Storage, Inc. (the “Parent”), a Maryland corporation,
who audited and reviewed the Financial Statements (as defined
below) are independent public accountants of Parent within the
meaning of the Securities Act, and the rules and regulations of the
Securities and Exchange Commission (the “ Commission
”) thereunder.
(u) The audited consolidated
financial statements (including the notes thereto) and schedules of
Parent, and its consolidated subsidiaries for the fiscal year ended
December 31, 2004, and interim Financial Statements dated March 31,
2005 (the “ Financial Statements ”) provided to
the Purchaser are the most recent available consolidated financial
statements of Parent and its consolidated subsidiaries,
respectively, and fairly present in all material respects, in
accordance with U.S. generally accepted accounting principles, the
financial position of Parent and its consolidated subsidiaries, and
the results of operations and changes in financial condition as of
the dates and for the periods therein specified. Such consolidated
financial statements and schedules have been prepared in accordance
with U.S.
generally accepted accounting principles
(“ GAAP ”) consistently applied throughout the
periods involved (except as otherwise noted therein).
(v) None of the Trust, the Company
nor any of its subsidiaries has any liability, whether known or
unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due, including any
liability for taxes (and there is no past or present fact,
situation, circumstance, condition or other basis for any present
or future action, suit, proceeding, hearing, charge, complaint,
claim or demand against the Company or its subsidiaries that could
give rise to any such liability), except for (i) liabilities set
forth in the Financial Statements, (ii) normal fluctuations in the
amount of the liabilities referred to in clause (i) above occurring
in the ordinary course of business of the Trust, the Company and
all of its subsidiaries since the date of the most recent balance
sheet included in such Financial Statements and (iii) liabilities
that would not, singly or in the aggregate, have a Material Adverse
Effect.
(w) Since the date of the Financial
Statements, there has not been any Material Adverse
Change.
(x) The documents of Parent filed
with the Commission in accordance with the Exchange Act, from and
including the commencement of the fiscal year covered by the
Company’s most recent Annual Report on Form 10-K, at the time
they were or hereafter are filed by Parent with the Commission
(collectively, the “ 1934 Act Reports ”),
complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder (the “ 1934 Act Regulations
”), and, at the date of this Purchase Agreement and on the
Closing Date, do not and will not include 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; and other than such instruments, agreements, contracts
and other documents as are filed as exhibits to Parent’s
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q or
Current Reports on Form 8-K, there are no instruments, agreements,
contracts or documents of a character described in Item 601 of
Regulation S-K promulgated by the Commission to which Parent or any
of its subsidiaries is a party. Parent is in compliance with all
currently applicable requirements of the Exchange Act that were
added by the Sarbanes-Oxley Act of 2002, except where such
noncompliance would not, singly or in the aggregate, have a
Material Adverse Effect.
(y) No labor dispute with the
employees of the Trust, the Company or any of its subsidiaries
exists or, to the knowledge of the administrative trustees of the
Trust or the general partner of the Company, is imminent, except
those which would not, singly or in the aggregate, have a Material
Adverse Effect.
(z) No filing with, or
authorization, approval, consent, license, order, registration
qualification or decree of, any Governmental Entity, other than
those that have been obtained or will be timely made or obtained,
is necessary or required for the performance by the Trust or the
Company of their respective obligations under the
Operative
Documents, as applicable, or the consummation by
the Trust and the Company of the transactions contemplated by the
Operative Documents.
(aa) Each of the Trust, the Company
and each subsidiary of the Company has good and marketable title to
all of its respective real and personal properties, in each case
free and clear of all Liens and defects, except for those defects
in title and Liens that would not, singly or in the aggregate, have
a Material Adverse Effect; and all of the leases and subleases
under which the Trust, the Company or any subsidiary of the Company
holds properties are in full force and effect, except where the
failure of such leases and subleases to be in full force and effect
would not, singly or in the aggregate, have a Material Adverse
Effect, and none of the Trust, the Company or any subsidiary of the
Company has any notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Trust, the Company
or any subsidiary of the Company under any such leases or
subleases, or affecting or questioning the rights of such entity to
the continued possession of the leased or subleased premises under
any such lease or sublease, except for such claims that would not,
s
