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4,000,000 SHARES
CAPITAL TRUST, INC.
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
March
24, 2008
March
24, 2008
Morgan
Stanley & Co. Incorporated
1585
Broadway
New
York, New York 10036
Dear
Ladies and Gentlemen:
Capital
Trust, Inc., a Maryland corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein,
to issue and sell to the underwriter named in Schedule
I attached hereto (the “ Underwriter
”), an aggregate of 4,000,000 shares (the “
Shares
”) of class A common stock, par value $0.01 per share,
of the Company. The shares of class A common stock,
par value $0.01 per share, of the Company to be outstanding
after giving effect to the sales contemplated hereby are
hereinafter referred to as the “ Class A
Common
Stock .”
The
Company has prepared and filed with the Securities and
Exchange Commission (the “ Commission
”) under the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (collectively,
the “ Securities Act
”) a shelf registration statement on Form S-3 (File No.
333-111261), including a prospectus, relating to the Shares,
which registration statement has become
effective. Such registration statement covers the
registration of the Shares under the Securities
Act. The registration statement as amended or
supplemented to the date of this Agreement, including the
exhibits and schedules thereto as of the date of this
Agreement, the documents incorporated by reference therein or
otherwise deemed a part thereof or included therein under the
Securities Act as of the date of this Agreement and the
information (if any) deemed to be part of the registration
statement as of the date of this Agreement pursuant to
Rule 430A or 430B under the Securities Act, is
hereinafter referred to as the “ Registration
Statement ,” and the related prospectus covering
the Shares, dated December 29, 2003, is hereinafter referred
to as the “ Base Prospectus
.” The Base Prospectus, as supplemented by
the final prospectus supplement specifically relating to the
Shares in the form first used to confirm sales of the Shares
(or in the form first made available to the Underwriter by the
Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act) is hereinafter referred to as the
“ Prospectus
,” and the term “ preliminary
prospectus ” means any preliminary form of the
Prospectus. For purposes of this Agreement, “
free writing
prospectus ” has the meaning set forth in Rule
405 under the Securities Act, “ Time of Sale
Prospectus ” means the Base Prospectus together
with the free writing prospectus, term sheet and press release
identified in Schedule
I attached hereto, and “ broadly available road
show ” means a “bona fide electronic road
show,” if any, as defined in Rule 433(h)(5) under the
Securities Act that has been made available without
restriction to any person. As used herein, the
terms “Registration Statement,” “Base
Prospectus,” “preliminary prospectus,”
“Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms
“ supplement
,” “ amendment ,”
and “ amend ” as
used herein with respect to the Registration Statement, the
Base Prospectus, the Time of Sale Prospectus, any preliminary
prospectus or free writing prospectus shall include all
documents subsequently filed by the Company with the
Commission pursuant to
the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “
Exchange
Act ”), that are deemed to be incorporated by
reference therein.
1.
Representations and
Warranties . The Company represents and
warrants to and agrees with the Underwriter that:
(a) The
Registration Statement has become effective. No
notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company. No order suspending the
effectiveness of the Registration Statement has been issued by
the Commission and is in effect and no proceeding for that
purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been
initiated or, to the knowledge of the Company, threatened by
the Commission.
(b) The
documents incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus,
when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents contained any untrue
statement of a material fact or, taken together, omitted 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
any further documents so filed and incorporated by reference
in the Registration Statement, the Time of Sale Prospectus or
the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and will not contain
any untrue statement of a material fact or, taken together
with all other documents incorporated by reference in the
Registration Statement, Time of Sale Prospectus and the
Prospectus, 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.
(c) (i)
The Company has satisfied the conditions for use of Form S-3,
as set forth in the general instructions thereto, with respect
to the Registration Statement, (ii) each part of the
Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if
applicable, will not on the date hereof or on the Closing Date
(as defined below) contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement as of the
date it became effective did not contain any untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, (iv) the Registration Statement, the
Time of Sale Prospectus and the Prospectus, as amended or
supplemented, if applicable, complied on the date of filing
thereof and will comply on the Closing Date in all material
respects with the Securities Act, (v) the Time of Sale
Prospectus does not, and at the time of each sale of the
Shares in connection with the offering when the Prospectus is
not yet available to prospective purchasers, and at the
Closing Date, the Time of Sale Prospectus, as then amended or
supplemented by the Company in accordance with the terms of
this Agreement, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary
to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, (vi) each
broadly available road show, if any, when considered together
with the Time of Sale Prospectus, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(vii) the Prospectus as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading and (viii) the
Company has filed all reports required to be filed pursuant to
the Securities Act, the Exchange Act, the Sarbanes-Oxley Act
of 2002 (the “ Sarbanes-Oxley Act
”), the Financial Industry Regulatory Authority, Inc.
(the “ FINRA ”) and
the New York Stock Exchange (“ NYSE ”);
provided, however, the representations and warranties set
forth in this paragraph do not apply to statements or
omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating
to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein, it being understood and
agreed that the only such information furnished by
the Underwriter consists of the information
described as such in Section
8(b) below.
(d) The
Company is not an “ineligible issuer” in
connection with the offering pursuant to Rules 164, 405 and
433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to
Rule 433(d) under the Securities Act has been, or will be,
filed with the Commission in accordance with the requirements
of the Securities Act. Each free writing prospectus
that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act or that was prepared
by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules
and regulations of the Commission
thereunder. Except for the free writing
prospectuses, if any, identified in Schedule
I attached hereto forming part of the Time of Sale
Prospectus, and electronic road shows, if any, each furnished
to the Underwriter before first use, the Company has not
prepared, used or referred to, and will not, without the
Underwriter’s prior written consent, prepare,
use or refer to, any free writing prospectus.
(e) The
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of
Maryland, has the corporate power and authority to own its
property and to conduct its business as described in the
Registration Statement, Time of Sale Prospectus and Prospectus
and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(f) Each
subsidiary of the Company (including, as described below, CT
Investment) has been duly incorporated or otherwise formed, is
validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation, has the power
and authority to own its property and to conduct its business
as described in the Registration Statement, Time of Sale
Prospectus and Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries,
taken
as a whole; all of the issued shares of capital stock or other
equity interests (whether membership, partnership or
otherwise) of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company or
indirectly through one of its wholly-owned subsidiaries, free
and clear of all liens, encumbrances, equities or
claims.
(g) (i) The
Company owns 40,000 shares of common stock of CT Mezzanine
Partners III, Inc. (the “ Fund
”).
(ii) The
Fund is solely managed by the Company’s wholly-owned
subsidiary CT Investment Management Co., LLC (“
CT
Investment ”) (for purposes of this Agreement, CT
Investment shall be deemed a subsidiary of the Company),
pursuant to that certain Management Agreement (the “
Fund
Management Agreement ”), dated June 2, 2003, as
amended, by and between CT Investment and the
Fund.
(iii) Neither
the Fund nor CT Investment is in breach of, or default under
(nor has any event occurred which, with notice, lapse of time
or both, would constitute a breach of, or default under), the
Fund Management Agreement, except for any breach or default
that would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; the Fund Management
Agreement is in full force and effect, has not been amended
except as described in the Registration Statement, Time of
Sale Prospectus and Prospectus and constitutes a legal, valid
and binding agreement of the parties thereto enforceable in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors’ rights
generally and by general principles of equity.
(iv) The
Fund has been duly incorporated and formed, is validly
existing in good standing under the laws of the jurisdiction
of its formation, has the power and authority to own its
property and to conduct its business as described in the
Registration Statement, Time of Sale Prospectus and Prospectus
and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole; the capital stock and other equity interests of the
Fund have been duly and validly authorized and issued and the
shares of common stock of the Fund owned by the Company are
free and clear of all liens, encumbrances, equities or
claims.
(v) The
Company indirectly owns all of the equity interests listed in
Schedule
II attached hereto (the “ CDO Subs ”)
(for purposes of this Agreement, each CDO Sub shall be deemed
a subsidiary of the Company.
(vi) CT
Investment is not in breach of, or default under (nor has any
event occurred which, with notice, lapse of time or both would
constitute a breach of, or default under), any management
agreement for which CT Investment is acting as a manager,
except for any breach or default that would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole; each of the management agreements is in full
force and effect, has not been amended and constitutes the
legal, valid and binding agreement of the parties
thereto
enforceable
in accordance with its terms, except as may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors’ rights
generally and by general principles of equity.
(vii) Except
for (i) the subsidiaries listed in Exhibit 21.1 to the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2007 and (ii) CT Bracor Holding LLC, the
Company does not own or control, directly or indirectly, any
corporation, limited partnership, limited liability company,
trust, association or other entity that would be required to
be listed in Exhibit 21.2 of Form 10-K.
(h) The
authorized, issued and outstanding capital stock of the
Company is as set forth in the Registration Statement, Time of
Sale Prospectus and Prospectus (other than for subsequent
issuances, including restricted stock grants, if any, pursuant
to employee benefit plans described in the Registration
Statement, Time of Sale Prospectus and Prospectus or upon the
exercise of outstanding options or warrants described in the
Registration Statement, Time of Sale Prospectus and
Prospectus). The Class A Common Stock, including
the Shares, conforms in all material respects to the
description contained, or incorporated by reference, in the
Registration Statement, Time of Sale Prospectus and
Prospectus. All of the issued and outstanding
shares of Class A Common Stock have been duly authorized and
validly issued, are fully paid and non-assessable and have
been issued in compliance with federal and state securities
laws. None of the outstanding securities of the
Company were issued in violation of the percentage limitations
(without the benefit of any transfer in trust provisions)
contained in the Company’s organizational documents,
including, without limitation, the provisions of
Article VII of the Company’s articles of amendment
and restatement, as amended by the Company’s certificate
of notice, dated February 27, 2007. None of the
outstanding shares of Class A Common Stock were issued in
violation of any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or
outstanding options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt
securities convertible into, exchangeable or exercisable for,
any capital stock of the Company or any of its subsidiaries
other than those accurately described in the Registration
Statement, Time of Sale Prospectus and Prospectus or
subsequently issued pursuant to the Company’s stock
option, stock bonus and other stock plans or arrangements
described in the Registration Statement, Time of Sale
Prospectus and Prospectus. The description of the
Company’s stock option, stock bonus and other stock
plans or arrangements, and the options or other rights granted
thereunder, set forth in the Registration Statement, Time of
Sale Prospectus and Prospectus accurately and fairly presents
the information required to be shown with respect to such
plans, arrangements, options and rights.
(i) This
Agreement has been duly authorized, executed and delivered by
the Company.
(j) The
Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive
or similar rights. None of the Shares will be
issued, sold or purchased (including any shares purchased by
Samuel Zell or any of his affiliates or W. R. Berkley
Corporation or any of its affiliates) in violation of the
percentage limitations (without the benefit of any transfer in
trust provisions)
contained
in the Company’s organizational documents, including,
without limitation, the provisions of Article II, Section 10
of the Company’s second amended and restated bylaws and
Article VII of the Company’s articles of amendment and
restatement, as amended by the Company’s certificate of
notice, dated February 27, 2007.
(k) The
execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will
not contravene (i) any provision of applicable law; (ii) the
charter or the second amended and restated bylaws of the
Company; (iii) any agreement or other instrument binding upon
(a) the Company or any of its subsidiaries that is material to
the Company and its subsidiaries, taken as a whole, or
(b) the Fund; or (iv) any judgment, order or decree of
any governmental body, agency or court having jurisdiction
over the Company, any subsidiary or the Fund, except in the
case of clauses (i), (iii) or (iv) for such contraventions as
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of
the various states or FINRA in connection with the offer and
sale of the Shares.
(l) There
has not occurred any material adverse change, or any
development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings,
business or operations of (i) the Company and its
subsidiaries, taken as a whole, or (ii) the Fund, from that
set forth in the Time of Sale Prospectus.
(m) There
are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, to which the Company,
any of its subsidiaries or the Fund is a party or to which any
of the properties of the Company, any of its subsidiaries or
the Fund is subject that are required to be described in the
Registration Statement, Time of Sale Prospectus or Prospectus
and are not so described and there are no statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement, the Time of Sale
Prospectus or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as
required.
(n) Each
preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(o) The
Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof
as described in the Time of Sale Prospectus, will not be
required to register as an “investment company” as
such term is defined in the Investment Company Act of 1940, as
amended.
(p) The
Company, its subsidiaries and the Fund (i) are in compliance
with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental
Laws ”), (ii) have received all permits, licenses
or other approvals required of them under applicable
Environmental Laws to conduct their
respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except in
the case of clauses (i), (ii) or (iii) where such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries,
taken as a whole.
(q) There
are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating
expenditures required for clean up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and
any potential liabilities to third parties) which would,
singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole, or on the
Fund.
(r) Except
as have been waived in writing and provided to the Underwriter
and counsel to the Underwriter, there are no contracts,
agreements or understandings between the Company and any
person granting such person the right to require the Company
to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the
Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(s) Ernst
& Young LLP, which has expressed its opinion with respect
to the financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting
schedules filed with the Commission as a part of (or
incorporated by reference in) the Registration Statement and
included or incorporated by reference in the Time of Sale
Prospectus and Prospectus, are independent registered public
accountants with respect to the Company and its subsidiaries
within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board
and as required by the Securities Act. The
statements included in the Registration Statement with respect
to Ernst & Young LLP pursuant to Rule 509 of Regulation
S-K of the Securities Act are true and correct in all material
respects.
(t) None
of the Company, any of its subsidiaries or the Fund is in
violation or default of, and none of the Company, any of its
subsidiaries or the Fund has received notice of, or has
knowledge of any occurrence or circumstance which, with notice
or passage of time or both, would give rise to, a violation or
default of, (i) any provision of its charter or bylaws or
other organizational documents, as applicable, including the
Company’s second amended and restated bylaws, (ii) the
terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement, credit facility,
repurchase agreement, management agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, including,
without limitation, (1) that certain Master Repurchase
Agreement, dated as of July 30, 2007, by and among the
Company, Citigroup Global Markets, Inc. and Citigroup
Financial Products Inc., as such agreement may be amended from
time to time, (2) that certain Amendment No. 1 to Master
Repurchase Agreement, dated as of March 22, 2007, by and
between the Company and JPMorgan Chase Bank, N.A., as such
agreement may be amended from time to time, (3) that certain
First Amendment to Credit Agreement, dated as of June 1, 2007,
by and among the Company, the lenders named therein and WestLB
AG, as
administrative
agent, as such agreement may be amended from time to time, (4)
that certain Junior Subordinated Indenture dated as of March
29, 2007, by and between the Company and The Bank of New York
Trust Company, National Association, as trustee, as such may
be amended from time to time, (5) the Amended and Restated
Master Repurchase Agreement, dated as of February 15, 2006, as
amended, among the Company and CT BSI Funding Corp. and Bear,
Stearns Funding, Inc., and (6) the Amended and Restated Master
Repurchase Agreement, dated as of February 15, 2006, as
amended, among the Company and CT BSI Funding Corp. and Bear,
Stearns International Limited, or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Company, such subsidiary or Fund or any of its respective
properties, as applicable, including, without limitation, the
provisions of the Securities Act, Exchange Act, Sarbanes-Oxley
Act and the rules and regulations of FINRA and the NYSE,
except in the case of clauses (ii) or (iii) for such
violations or defaults as would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(u) The
Company has delivered to the Underwriter or will deliver one
(1) complete photocopy of a manually signed copy of the
Registration Statement and of each consent and certificate of
experts filed as a part thereof and conformed copies of the
Registration Statement (without exhibits), preliminary
prospectuses, free writing prospectuses, the Time of Sale
Prospectus and the Prospectus, as amended or supplemented, in
such quantities and at such places as the Underwriter has
requested.
(v) The
Company has not distributed and will not distribute, prior to
the Closing Date, any offering material in connection with the
offering and sale of the Shares other than the Time of Sale
Prospectus, the Prospectus or the Registration
Statement.
(w) (i)
The financial statements filed with the Commission as a part
of (or incorporated by reference in) the Registration
Statement and included or incorporated by reference in the
Time of Sale Prospectus and Prospectus present fairly the
consolidated financial position of the Company and its
subsidiaries as of and at the dates indicated and the results
of their operations and cash flows for the periods specified
and comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable; (ii) the supporting schedules included or
incorporated by reference in the Registration Statement
present fairly the information required to be stated therein;
and (iii) the other financial information included or
incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus has been derived
from the accounting records of the Company and its
subsidiaries and presents fairly the information shown
thereby. The financial statements and supporting
schedules have been prepared in conformity with generally
accepted accounting principles in the United States (“
GAAP
”) applied on a consistent basis (except in the case of
unaudited financials for normal year-end adjustments)
throughout the periods involved, except as may be expressly
stated in the related notes thereto. No other
financial statements or supporting schedules are required to
be included or incorporated by reference in the Registration
Statement, Time of Sale Prospectus or
Prospectus. The financial data set forth in the
Time of Sale Prospectus and Prospectus under the caption
“Prospectus Summary--Summary Financial Data”
fairly presents the information set forth therein and have
been compiled on a basis consistent with
that of the audited financial statements contained or
incorporated by reference in the Registration
Statement.
(x) The
Class A Common Stock is registered pursuant to Section 12(b)
of the Exchange Act, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Class A Common Stock under the Exchange
Act or delisting the Class A Common Stock from the NYSE nor
has the Company received any notification that the Commission
or the NYSE is contemplating terminating such registration or
listing.
(y) The
Company, its subsidiaries and the Fund own, possess or have a
right to acquire on commercially reasonable terms sufficient
trademarks, trade names, patent rights, patents, know-how,
collaborative research agreements, inventions, servicemarks,
copyrights, licenses, approvals, trade secrets and other
similar rights (collectively, “ Intellectual Property
Rights ”) necessary to conduct their businesses
as now conducted, as described in the Registration Statement,
the Time of Sale Prospectus, the Prospectus and any respective
amendments or supplements thereto. The expiration
of any of such Intellectual Property Rights would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole. None of the Company, any of its
subsidiaries or the Fund has received any notice of any
infringement of or conflict with asserted rights of the
Company, any of its subsidiaries or the Fund by others with
respect to any Intellectual Property Rights necessary to
conduct the business of the Company, any of its subsidiaries
or the Fund as now conducted, except as would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole. The Company, its subsidiaries and
the Fund do not, in the conduct of their business as now
conducted, infringe or conflict with any right or patent of
any third party or, to the knowledge of the Company, its
subsidiaries or the Fund, any discovery, invention, product or
process which is the subject of a patent application filed by
any third party, which such infringement or conflict is
reasonably likely to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(z) The
Company, each subsidiary and the Fund possesses such valid and
current certificates, authorizations, permits or licenses
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective
businesses as now conducted, and none of the Company, any
subsidiary or the Fund has received any notice of proceedings
relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or
permit, except in each case as would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(aa) The
Company, each of its subsidiaries and the Fund have good and
marketable title to all the real properties reflected as owned
in the financial statements referred to in Section
1(w) above or elsewhere in the Registration Statement,
Time of Sale Prospectus and Prospectus, in each case free and
clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, with such
exceptions as are described in the Registration Statement,
Time of Sale Prospectus and Prospectus or are not material and
do not materially interfere with the use made or proposed to
be made of such property or assets by the Company, such
subsidiary or the Fund. The real property,
improvements, equipment and personal property held under lease
by the Company, any subsidiary or the Fund are held under
valid and enforceable leases, with such exceptions as are
described in the Registration Statement, Time of Sale
Prospectus and Prospectus or are not material and do not
materially interfere with the use made or proposed to be made
of such real property, improvements, equipment or personal
property by the Company, such subsidiary or the
Fund. Each of the mortgages, deeds of trust or
other security agreements executed and/or delivered by or to
the Company, any subsidiary or the
Fund,
as applicable, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, are
enforceable in accordance with their terms, subject to
principles of equity and bankruptcy, insolvency, moratorium
and other laws generally applicable to creditors’ rights
and the enforcement of debtors’
obligations. There are no facts that would impair
the validity or value of any of such mortgages, deeds of trust
or other security agreements and such mortgages, deeds of
trust or other security agreements are not the subject of any
breach, default or event that, with the passage of time or the
giving of notice or both, would result in such a breach or
default except as described in the Registration Statement,
Time of Sale Prospectus or Prospectus or for such facts,
breaches, defaults or events as would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(bb) Except
for (i) CT Investment with respect to sales tax for the period
from September 1, 2001 to September 1, 2007, which is
currently being audited, and (ii) CT MP II, LLC, an entity 50%
owned by CT Investment, with respect to unincorporated
business taxes owed by CT MP II, LLC which is currently being
audited, the Company, its subsidiaries and the Fund have filed
all necessary federal, state and foreign income and franchise
tax returns and have paid all taxes required to be paid by any
of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of
them. The Company has made adequate charges,
accruals and reserves in the applicable financial statements
referred to in Section
1(w) above in respect of all federal, state and foreign
income and franchise taxes for all periods as to which the tax
liability of the Company, any of its subsidiaries or the Fund
has not been finally determined. The Company, its
subsidiaries and the Fund are not aware of any tax deficiency
that has been or might be asserted or threatened against the
Company, its subsidiaries or the Fund.
(cc) There
are no transfer taxes or other similar fees or charges under
federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with
the execution and delivery of this Agreement or the issuance
and sale by the Company of the Shares.
(dd) Each
of the Company, its subsidiaries and the Fund are insured in
such amounts and with such deductibles and covering such risks
as are generally deemed adequate and customary for their
businesses, including, but not limited to, policies covering
real and personal property owned or leased by the Company, its
subsidiaries and the Fund against theft, damage, destruction,
acts of vandalism, general liability and directors’ and
officers’ liability. None of the Company, any
of its subsidiaries nor the Fund has received notice that it
will not be able to or has reason to believe that it will not
be able to (i) renew their existing insurance coverage as and
when such policies expire, or (ii) obtain comparable coverage
from similar institutions as may be necessary or appropriate
to conduct their business as now conducted and at a cost that
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(ee) Neither
the Company nor any of its directors, officers or controlling
persons has taken, nor will it take, directly or indirectly,
any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price
of the Class A
Common Stock to facilitate the sale or resale of the Shares or
which would otherwise be in contravention of applicable
law.
(ff) There
are no business relationships or related-party transactions
involving the Company, any subsidiary, the Fund or any other
person required to be described in the Registration Statement,
Time of Sale Prospectus or Prospectus which have not been
described as required.
(gg) The
documents incorporated or deemed to be incorporated by
reference in the Registration Statement, Time of Sale
Prospectus and Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act
and, at the time the Registration Statement and any amendments
thereto became effective and at the Closing Date, will not
contain an untrue statement of a material fact or, taken as a
whole, 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.
(hh) The
Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and are 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 GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (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; the chief executive
officer and principal financial officer of the Company have
made all certifications required by the Sarbanes-Oxley Act and
any related rules and regulations promulgated by the
Commission thereunder; and the Company is otherwise in
compliance with all applicable provisions of the
Sarbanes-Oxley Act and the rules and regulations issued
thereunder by the Commission currently in effect and requiring
compliance as of the date hereof and as of the Closing
Date. Since the end of the Company’s fiscal
year for 2007, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting. Except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, the
Company is not aware of any material weaknesses in the
Company’s internal controls.
(ii) The
Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined
in Rule 13a-15(e) of the Exchange Act) that complies with the
requirements of the Exchange Act and is designed to ensure
that information required to be disclosed by the Company in
reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms,
including, but not limited to, controls and procedures
designed to ensure that such information is accumulated and
communicated to the Company’s management as appropriate
to allow timely decisions regarding required
disclosure. The Company and its subsidiaries have
carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15
of the Exchange Act.
(jj) The
Company has obtained directors’ and officers’
liability insurance in the minimum amount of $10,000,000 and
no claims thereunder are outstanding.
(kk) Neither
the Company nor any of its subsidiaries nor, to the
Company’s knowledge, any director, officer, agent,
employee or other person associated with or acting on behalf
of the Company or any of its subsidiaries has (i) made any
contribution or other payment to any official of, or candidate
for, any federal, state or foreign office in violation of any
law or of the character required to be disclosed in the
Registration Statement, Time of Sale Prospectus or Prospectus;
(ii) made any payment of funds of the Company or any
subsidiary or received or retained any funds in violation of
any law, rule or regulation or of a charac
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