HIGHWOODS PROPERTIES,
INC.
COMMON STOCK, $.01 PAR
VALUE
UNDERWRITING
AGREEMENT
May 27, 2009
May 27, 2009
To the Managers named in Schedule I
hereto
for the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Highwoods Properties, Inc., a
Maryland corporation (the “ Company ”), proposes
to issue and sell to the several underwriters named in Schedule II
hereto (the “ Underwriters ”), for whom you are
acting as managers (the “ Managers ”), the
number of shares of its Common Stock, $.01 par value, set forth in
Schedule I hereto (the “ Firm Shares ”).
The Company also proposes to issue and sell to the several
Underwriters not more than the number of additional shares of its
Common Stock, $.01 par value, set forth in Schedule I hereto (the
“ Additional Shares ”) if and to the extent that
you, as Managers of the offering, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such
shares of common stock granted to the Underwriters in Section 2
hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “ Shares .” The
shares of Common Stock, $.01 par value, of the Company to be
outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the “ Common Stock.
” If the firm or firms listed in Schedule II hereto include
only the Managers listed in Schedule I hereto, then the terms
“Underwriters” and “Managers” as used
herein shall each be deemed to refer to such firm or
firms.
The Company and Highwoods Realty
Limited Partnership, a North Carolina limited partnership (the
“ Operating Partnership ”), have filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement, including a prospectus, (the
file number of which is set forth in Schedule I hereto) on Form
S-3, relating to the securities (the “ Shelf
Securities ”), including the Shares, to be issued from
time to time by the Company or the Operating Partnership. The
registration statement as amended to the date of this Agreement,
including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to
Rule 430A or Rule 430B under the Securities Act of 1933,
as amended (the “ Securities Act ”), is
hereinafter referred to as the “ Registration
Statement ”, and the related prospectus covering the
Shelf Securities dated March 14, 2008 in the form first used to
confirm sales of the Shares (or in the form first made available to
the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the “ Basic Prospectus. ” The
Basic Prospectus, as supplemented by the 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
Underwriters 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 preliminary prospectus together
with the free writing prospectuses, if any, and other information,
each identified in Schedule I hereto, and “ broadly
available road show ” means a “bona fide electronic
road show” 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,”
“Basic 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 Basic 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 (the “ Exchange Act ”), that are deemed
to be incorporated by reference therein.
1.
Representations and Warranties . Each of the Company and the
Operating Partnership, jointly and severally, represents and
warrants to and agrees with each of the Underwriters
that:
(a)
Registration Statement. The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission. The Company is a well-known seasoned
issuer (as defined in Rule 405 under the Securities Act) eligible
to use the Registration Statement as an automatic shelf
registration statement and neither the Company nor the Operating
Partnership has received notice that the Commission objects to the
use of the Registration Statement as an automatic shelf
registration statement.
(b)
Incorporated Documents. (i) Each document, if any, filed or
to be filed pursuant to the Exchange Act and incorporated by
reference in the Time of Sale Prospectus or the Prospectus complied
or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (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
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 hereof does 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 and the Prospectus
comply, and as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (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 (as
defined in Section 4), the Time of Sale Prospectus, as then amended
or supplemented by the Company, 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 and (vii) the Prospectus
does not contain and, 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, except that 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 any Underwriter
furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein.
(c)
Not an Ineligible Issuer. 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 and the applicable rules and regulations of
the Commission thereunder. Each free writing prospectus that the
Company or the Operating Partnership 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
or the Operating Partnership complies or will comply in all
material respects with the requirements of the Secu rities Act and
the applicable rules and regulations of the Commission thereunder.
Except for the free writing prospectuses, if any, identified in
Schedule I hereto forming part of the Time of Sale Prospectus, and
electronic road shows, if any, each furnished to you before first
use, neither the Company nor the Operating Partnership has
prepared, used or referred to, and neither will, without your prior
consent, prepare, use or refer to, any free writing
prospectus.
(d)
Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by, and is a valid and
binding agreement of,
the Company and the Operating
Partnership, enforceable in accordance with its terms, except as
rights to indemnification hereunder may be limited by applicable
law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(e)
Authorization of Issuance. 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.
(f)
No Material Adverse Change. Except as otherwise disclosed in
the Time of Sale Prospectus and the Prospectus, subsequent to the
respective dates as of which information is given in the Time of
Sale Prospectus and the Prospectus: (i) there has been no material
adverse change, or any development that could reasonably be
expected to result in a material adverse change, in the condition,
financial or otherwise, or in the earnings, business, operations or
prospects, whether or not arising from transactions in the ordinary
course of business, of the Company, the Operating Partnership and
their subsidiaries, considered as one entity (any such change is
called a “ Material Adverse Change ”); (ii) the
Company, the Operating Partnership and its subsidiari es,
considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary
course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) except
for regular quarterly dividends on the Company’s common stock
or preferred stock or the Operating Partnership’s units in
amounts per share or unit that are consistent with past practices,
there has been no dividend or distribution of any kind declared,
paid or made by the Operating Partnership or the Company on any
class of capital stock or partnership interests.
(g)
Independent Accountants. Deloitte & Touche LLP, which
expressed their opinion with respect to certain financial
statements (which term as used in this Agreement includes the
related notes thereto) and supporting schedules filed with the
Commission and incorporated by reference in the Time of Sale
Prospectus and the Prospectus, are independent public accountants
within the meaning of Regulation S-X under the Securities Act and
the Exchange Act and are a registered public accounting firm within
the meaning of Sarbanes Oxley Act of 2002, and any non-audit
services provided by Deloitte & Touche LLP to the Company or
the Operating Partnership or any of their subsidiaries have been
approved by the Audit Committee of the Board of Directors of the
Company.
(h)
Preparation of the Financial Statements. The financial
statements, together with the related schedules and notes,
incorporated by reference in the Time of Sale Prospectus and the
Prospectus present fairly the consolidated financial position of
the Company as of and at the dates indicated and the
consolidated results of its
operations and cash flows for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis throughout the periods involved.
(i)
Real Estate Investment Trust. With respect to all tax
periods in respect of which the Internal Revenue Service is or will
be entitled to any claim, the Company has been organized and
operated in conformity with the requirements for qualification and
taxation as a real estate investment trust under the Internal
Revenue Code of 1986 (as amended, the “ Code ,”
which term, as used herein, includes the regulations and published
interpretations thereunder), and the Company’s present and
proposed method of operation will enable it to continue to meet the
requirements for taxation as a real estate investment trust under
the Code.
(j)
Incorporation and Good Standing of the Company, the Operating
Partnership, and their Respective Subsidiaries. Each of the
Operating Partnership, the Company, and their respective
subsidiaries has been duly incorporated or formed, as applicable,
and is validly existing as a corporation, limited partnership or
limited liability company, as applicable, in good standing under
the laws of the jurisdiction of its incorporation or formation, as
applicable, and has the corporate, limited partnership or limited
liability company power and authority to own, lease and operate its
properties and to conduct its business as described in the Time of
Sale Prospectus and, in the case of the Operating Partnership and
the Company, to enter into and perform its obligation s under this
Agreement. Each of the Operating Partnership, the Company, and each
subsidiary is duly qualified as a foreign corporation, limited
partnership or limited liability company, as applicable, to
transact business and is in good standing or equivalent status in
each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued
and outstanding capital stock (or similar equity interests) of each
subsidiary of the Company has been duly authorized and validly
issued, is fully paid and nonassessable and such capital stock
owned by the Company is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim. The Company does not own or
control, directly or indirectly , any corporation, association or
other entity that would be deemed a Significant Subsidiary (as such
term is defined in Rule 405 under the Securities Act) other
than the subsidiaries listed in Exhibit 21 to the Company’s
Annual Report on Form 10-K for the fiscal year ended December 31,
2008.
(k)
Partnership Agreement . The Agreement of Limited Partnership
of the Operating Partnership (the “ Partnership
Agreement ”) has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms. To the best of the Company’s
knowledge, the Partnership Agreement has been duly executed and
delivered by the other parties thereto and is a valid and binding
agreement, enforceable against such parties in accordance with its
terms.
(l)
Conformity of Capital Stock to Description . The authorized
capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
(m)
Capitalization and Other Matters . All of the outstanding
shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws. None of the
outstanding shares of 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 or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries
other than those accurately described in the Time of Sale
Prospectus and the Prospectus. The descripti on of the options or
other rights granted and/or exercised under the Company’s
stock option plans set forth in the Time of Sale Prospectus and the
Prospectus accurately and fairly describes such options and rights
in all material respects.
(n)
Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. None of the Company, the
Operating Partnership, nor any of their subsidiaries is in
violation of its partnership agreement, charter, bylaws, or limited
liability company agreement or is in default (or, with the giving
of notice or lapse of time, would be in default) (“
Default ”) under any indenture, mortgage, loan or
credit agreement, note, contract, franchise, lease or other
instrument to which the Company, the Operating Partnership or any
of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Operating
Partnership, the Company or any of their subsidiaries is subject
(each, an “ Existing Instrument ”), except for
such Defaults as would not, individually or in the aggregate,
result in a Material Adverse Change. The Company’s and the
Operating Partnership’s execution, delivery and performance
of this Agreement, and the issuance and delivery of the Shares, and
consummation of the transactions contemplated hereby and by the
Time of Sale Prospectus and the Prospectus (i) have been duly
authorized by all necessary partnership or corporate action, as
applicable, and will not result in any
violation of the provisions of the
partnership agreement, charter, bylaws or limited liability company
agreement of the Company, the Operating Partnership or any of their
subsidiaries, (ii) will not conflict with or constitute a breach
of, or Default or a Debt Repayment Triggering Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company,
the Operating Partnership or any of their subsidiaries pursuant to,
or require the consent of any other party to, any Existing
Instrument, and (iii) will not result in any violation of any law,
statute, administrative regulation or administrative or court
decree applicable to the Company, the Operating Partnership or any
subsidiary. No consent, approval, authorization or other order of,
or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the execution,
delivery and performance by the Company and the Operating
Partnership of this Agreement or the issuance and delivery of the
Shares, or consummation of the transactions contemplated hereby and
by the Time of Sale Prospectus and the Prospectus, except such as
have been obtained or made by the Company and the Operating
Partnership and are in full force and effect under the Securities
Act, and except such as may be required by the applicable
securities laws of the several states of the United States or
provinces of Canada. As used herein, a “ Debt Repayment
Triggering Event ” means any event or condition which
gives, or with the giving of notice or lapse of time would give,
the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company, the Operating Partnership, or
any of their subsidiaries.
(o)
No Material Actions or Proceedings. Except as otherwise
disclosed in the Time of Sale Prospectus and the Prospectus, there
are no legal or governmental actions, suits or proceedings pending
or, to the best of the Company’s and the Operating
Partnership’s knowledge, threatened (i) against or affecting
the Company, the Operating Partnership, or any of their
subsidiaries or which has as the subject thereof any property owned
or leased by, the Company, the Operating Partnership, or any of
their subsidiaries that, if determined adversely to the Company,
the Operating Partnership, or such subsidiary, would reasonably be
expected to result in a Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this Agreement
or (ii) that are required to be described in the Registration
Statement or the 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 or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required. No material labor
dispute with the employees of the Operating Partnership, the
Company or any of their subsidiaries exists or, to the best of the
knowledge of the Operating Partnership and the Company, is
threatened or imminent.
(p)
Preliminary Prospectuses. 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.
(q)
Intellectual Property Rights. The Company, the Operating
Partnership and their subsidiaries own or possess sufficient
trademarks, trade names, patent rights, copyrights, licenses,
domain names, approvals, trade secrets and other similar rights
(collectively, “ Intellectual Property Rights ”)
reasonably necessary to conduct their businesses as now conducted;
and the expected expiration of any of such Intellectual Property
Rights would not result in a Material Adverse Change. Neither the
Company, the Operating Partnership, nor any of their subsidiaries
has received any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which infringement or
conflict, if the subject of an unfavorable decision, would result
in a Material Adverse Change.
(r)
All Necessary Permits, etc. The Company, the Operating
Partnership and each of their subsidiaries possess such valid and
current certificates, authorizations, permits, licenses, approvals,
consents and other authorizations issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses except for those for which the
failure to obtain would not result in a Material Adverse Change.
None of the Company, the Operating Partnership, nor any subsidiary
has received any notice of proceedings relating to the revocation
or modification of, or non-compliance with, any such certificate,
authorization, permit, license, approval, consent or other
authorization which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a
Material Adverse Change.
(s)
Title to Properties. Except as otherwise disclosed in the
Time of Sale Prospectus and the Prospectus, each of the Company,
the Operating Partnership and their subsidiaries has good and
marketable fee simple title to or valid and enforceable leasehold
title in all the properties and assets that are reflected as owned
in the financial statements referred to in Section 1(h) hereof, in
each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except for
such security interests, mortgages, liens, encumbrances, equities,
claims and other defects that do not have a material adverse effect
on the condition (financial or otherwise), earnings, business,
operations or prospects, whether or not arising from transactions
in the ordinary course of busi ness, of the Company, the Operating
Partnership and their subsidiaries, considered as one entity (any
such effect is called a “ Material Adverse Effect
”).
(t)
Mortgages, Deeds of Trust and Ground Leases. The mortgages
and deeds of trust encumbering the properties and assets described
in the Time of Sale Prospectus and the Prospectus (i) are not
convertible (in the absence of foreclosure) into an equity interest
in the property or asset described therein or in the Company, the
Operating Partnership or any of their subsidiaries, nor does the
Company, the Operating Partnership nor any of their subsidiaries
hold a participating interest therein, (ii) except as set forth in
the Time of Sale Prospectus and the Prospectus, are not
cross-defaulted to any indebtedness other than indebtedness of the
Company, the Operating Partnership or any of their subsidiaries and
(iii) are not cross-collateralized to any property not owned by the
Company, the Operating Partners hip or any of their subsidiaries.
Except as not to cause a Material Adverse Effect, all ground leases
affecting any of the properties, development projects or
development land owned by the Company, the Operating Partnership or
any of their subsidiaries are in full force and effect, and none of
the Company, the Operating Partnership or any of their subsidiaries
is in default under any such ground lease and neither of the
Company nor the Operating Partnership knows of any event which, but
for the passage of time or the giving of notice, or both, would
constitute a default under any of such ground leases.
(u)
Tax Law Compliance. Each of the Company and the Operating
Partnership has filed all federal, state, local and foreign income
tax returns which have been required to be filed (except in any
case in which the failure to so file would not have a Material
Adverse Effect) and has paid all taxes required to be paid and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except, in all cases,
for any such tax, assessment, fine or penalty that is being
contested in good faith.
(v)
Not an “Investment Company”. The Company and the
Operating Partnership have been advised of the rules and
requirements under the Investment Company Act of 1940, as amended
(the “ Investment Company Act ,” which term, as
used herein, includes the rules and regulations of the Commission
promulgated thereunder). None of the Company, the Operating
Partnership, or any of their subsidiaries is, and after giving
effect to the offering and sale of the Shares and the application
of the proceeds thereof as described in the Prospectus will not be,
an “investment company” within the meaning of the
Investment Company Act.
(w)
Insurance. Each of the Company, the Operating Partnership,
and their subsidiaries are insured by recognized, financially sound
institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed
adequate and customary for their businesses including, without
limitation, policies covering real and personal property owned or
leased by the Company, the Operating Partnership, and their
subsidiaries against theft, damage, destruction, acts of vandalism
and earthquakes. Neither the Company nor the
Operating Partnership has any 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 and at a cost that would not result in a Material Adverse
Change.
(x)
Title Insurance. Each of the Company, the Operating
Partnership, and each of their subsidiaries has title insurance or
binding commitments for title insurance on all material properties
and assets owned by them in an amount at least equal to the greater
of (a) the cost of acquisition of such property or assets and (b)
the cost of construction of the improvements located on such
properties.
(y)
No Price Stabilization or Manipulation. Neither the Company
nor the Operating Partnership has taken or will take, directly or
indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the
price of any security of the Company or the Operating Partnership
to facilitate the sale or resale of the Shares.
(z)
No Registration Rights. There are no contracts, agreements
or understandings between the Company and any person granting such
person the right to require the Company include any securities of
the Company with the Shares registered pursuant to the Registration
Statement.
(aa)
Compliance with Sarbanes-Oxley. Except as otherwise
disclosed in the Time of Sale Prospectus and the Prospectus, the
Company, the Operating Partnership, and their subsidiaries and
their respective officers and directors are in compliance with the
applicable provisions of the Sarbanes-Oxley Act of 2002 (the
“ Sarbanes-Oxley Act ,” which term, as used
herein, includes the rules and regulations of the Commission
promulgated thereunder).
(bb)
Accounting System. Except as otherwise disclosed in the Time
of Sale Prospectus and the Prospectus, the Company and its
subsidiaries maintain a system of accounting controls that is in
compliance with the Sarbanes Oxley Act and is designed to provide
reasonable assurances that: (i) transactions are executed in
accordance with management’s general or specific
authorization; (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; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(cc)
Disclosure Controls and Procedures . Each of the Company and
the Operating Partnership has established and maintains disclosure
controls
and procedures (as such term is
defined in Rules 13a-15 and 15d-14 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that
material information relating to the Company, the Operating
Partnership, and their subsidiaries is made known to the chief
executive officer and chief financial officer of the Company by
others within the Company, the Operating Partnership, or any of
their subsidiaries. The auditors of the Company and the Operating
Partnership and the Audit Committee of the Board of Directors of
the Company have been advised of: (i) any significant
deficiencies or material weaknesses in the design or operation of
internal controls which could adversely affect the ability of the
Company and the Operating Partnership to record, process,
summarize, and report financial data; and (ii) any fraud,
whether or not material, that involves management or other
employees who have a role in the internal controls of the Company
and the Operating Partnership. Except as otherwise disclosed in the
Time of Sale Prospectus and the Prospectus, since the date of the
most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
(dd)
Compliance with Environmental Laws. Except as otherwise
disclosed in the Time of Sale Prospectus and the Prospectus or as
would not, individually or in the aggregate, result in a Material
Adverse Change: (i) neither the Company, the Operating Partnership,
nor any of their subsidiaries is in violation of any federal,
state, local or foreign law or regulation relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum and petroleum
products (collectively, “ Materials of Environmental
Concern ”), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern
(collectively, “ Environmental Laws ”), which
violation includes, without limitation, noncompliance with any
permits or other governmental authorizations required for the
operation of the business of the Company, the Operating
Partnership, or their subsidiaries under applicable Environmental
Laws, or noncompliance with the terms and conditions thereof, nor
has the Company, the Operating Partnership, or any of their
subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that
alleges that the Company, the Operating Partnership, or any of
their subsidiaries is in violation of any Environmental Law; (ii)
there is no claim, action or cause of action filed with a court or
governmental authority, no investigation with respect to which the
Company or the Operating Partnership has received written notice,
and no written notice by any person or entity alleging
potential liability for
investigatory costs, cleanup costs, governmental responses costs,
natural resources damages, property damages, personal injuries,
attorneys’ fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased
or operated by the Company, the Operating Partnership, or any of
their subsidiaries, now or in the past (collectively, “
Environmental Claims ”), pending or, to the best of
the knowledge of the Company and the Operating Partnership,
threatened against the Company, the Operating Partnership, or any
of their subsidiaries or any person or entity whose liability for
any Environmental Claim the Company, the Operating Partnership, or
any of their subsidiaries has retained or assumed either
contractually or by operation of law; and (iii) to the best of the
knowledge of the Company and the Operating Partnership, there are
no past or present actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the release,
emission, discharge, presence or disposal of any Material of
Environmental Concern, that would result in a violation of any
Environmental Law or form the basis of a potential Environmental
Claim against the Company, the Operating Partnership, or any of
their subsidiaries or against any person or entity whose liability
for any Environmental Claim the Company, the Operating Partnership,
or any of their subsidiaries has retained or assumed either
contractually or by operation of law.
(ee)
Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company and the Operating
Partnership conduct a periodic review of the effect of
Environmental Laws on the business, operations and properties of
the Company, the Operating Partnership, and their subsidiaries, in
the course of which they identify and evaluate associated costs and
liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potentia
