Equity Lifestyle Properties,
Inc.
4,000,000 Shares of Common
Stock
(Par Value $.01 Per
Share)
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
Wachovia Capital Markets, LLC
as Representatives of the several Underwriters
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c/o
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Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
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Equity Lifestyle
Properties, Inc., a Maryland corporation (the “
Company ”), proposes to sell to the several
underwriters named in Schedule I hereto (the “
Underwriters ”), for whom you (the “
Representatives ”) are acting as representatives,
4,000,000 shares of Common Stock, $.01 par value (“ Common
Stock ”), of the Company (said shares to be issued and
sold by the Company being hereinafter called the “ Firm
Securities ”). The Company also proposes to grant to the
Underwriters an option to purchase up to 600,000 additional shares
of Common Stock to cover any overallotments (the “ Option
Securities ,” the Option Securities, together with the
Firm Securities, being hereinafter called the “
Securities ”). To the extent there are no additional
Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context
requires.
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) an “automatic shelf registration
statement,” as defined under Rule 405 (“
Rule 405 ”) of the rules and regulations (the
“ 1933 Act Regulations ”) of the Commission
promulgated under the Securities Act of 1933, as amended (the
“ 1933 Act ”), on Form S-3ASR
(No. 333-159014), including the related base prospectus,
covering the registration of shares of Common Stock, shares of
preferred stock, depositary shares representing preferred stock,
warrants and rights under the 1933 Act, and the offer and sale
thereof from time to time in accordance with Rule 415 of the
1933 Act Regulations. Such registration statement, and any
post-effective amendment thereto, became effective upon filing with
the Commission in accordance with Rule 462(e) of the 1933 Act
Regulations (“ Rule 462(e) ”). Promptly
after execution and delivery of this Agreement, the Company will
prepare and file a prospectus supplement relating to the Securities
in accordance with the provisions of Rule 430B of the 1933 Act
Regulations (“ Rule
430B ”) and paragraph (b) of Rule 424
of the 1933 Act Regulations (“ Rule 424(b) ”).
Any information included in such prospectus supplement that was
omitted from such registration statement at the time it became
effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B is referred to
herein as “Rule 430B Information.” Each base
prospectus and prospectus supplement used in connection with the
offering of the Securities that omitted Rule 430B Information
is referred to herein collectively as a “preliminary
prospectus.” Such registration statement, at any given time,
including any amendments thereto to such time, the exhibits and any
schedules thereto at such time, the documents incorporated or
deemed incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act at such time and the documents
otherwise deemed to be a part thereof or included therein by the
1933 Act Regulations, is herein referred to as the “
Registration Statement ;” provided ,
however , that “Registration Statement” without
reference to a time means the Registration Statement as of the time
of the first contract of sale for the Securities, which time shall
be considered the “new effective date” of the
Registration Statement with respect to the Underwriters and the
Securities (within the meaning of Rule 430B(f)(2)). The final
base prospectus and the final prospectus supplement, in the form
first furnished or made available to the Underwriters for use in
connection with the offering of the Securities, including the
documents incorporated or deemed incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act prior to
the time of the execution of this Agreement, are referred to herein
collectively as the “ Prospectus .” For purposes
of this Agreement, all references to the Registration Statement,
any preliminary prospectus or the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system or any successor system
thereto (collectively, “ EDGAR ”).
All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included” or “stated” in the Registration
Statement, any preliminary prospectus, the Prospectus or the
General Disclosure Package (as defined herein) (or other references
of like import) shall be deemed to include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in or otherwise deemed by
1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus, the Prospectus
or the General Disclosure Package, as the case may be, prior to the
execution of this Agreement; and all references in this Agreement
to amendments or supplements to the Registration Statement, any
preliminary prospectus, the Prospectus or the General Disclosure
Package shall be deemed to include the filing of any document under
the Securities Exchange Act of 1934, as amended (the “
1934 Act ”), which is or is deemed to be incorporated
by reference in or otherwise deemed by the 1933 Act Regulations to
be a part of or included in the Registration Statement, such
preliminary prospectus, the Prospectus or the General Disclosure
Package, as the case may be, at or after the execution of this
Agreement.
1.
Representations and Warranties . Each of the Company and MHC
Operating Limited Partnership, an Illinois limited partnership (the
“ Operating Partnership ” and together with the
Company and MHC Trust, a Maryland real estate investment trust and
a majority owned subsidiary of the Company (“ MHC
Trust ”), the “ Transaction Entities
”), jointly and severally represents and warrants to, and
agrees with, each Underwriter as of the date hereof,
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as of the
Applicable Time (as defined below), as of the Closing Date (as
defined in Section 3 hereof), and as of each Date of Delivery
(as defined in Section 2 hereof), as follows:
(a) The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement was filed by the Company with the Commission
not earlier than three years prior to the date hereof. The
Registration Statement became effective under the 1933 Act upon
filing with the Commission. The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405, and the Securities have been and remain eligible for
registration by the Company on an automatic shelf registration
statement. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued under
the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) of
the 1933 Act Regulations has been received by the Company. No order
preventing or suspending the use of any preliminary prospectus or
the Prospectus has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened
or contemplated by the Commission or the securities authority of
any jurisdiction. Any request on the part of the Commission for
additional information has been complied with.
At the respective
times the Registration Statement and any post-effective amendments
thereto became effective, at each deemed effective date with
respect to the Underwriters and the Securities pursuant to
Rule 430B(f)(2), at the Closing Date and at each Date of
Delivery, if any, the Registration Statement and any amendments and
supplements thereto complied, complies and will comply in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations, and did not, does not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued, at the Closing Date or
at any Date of Delivery, included, includes or will include an
untrue statement of a material fact or omitted, omits or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
Any preliminary
prospectus (including the prospectus filed as part of the
Registration Statement or any amendment thereto) complied when so
filed in all material respects with the 1933 Act and the 1933 Act
Regulations and any such preliminary prospectus and the Prospectus
delivered or made available to the Underwriters for use in
connection with the offering of Securities was and will, at the
time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by
Regulation S-T.
As of the
Applicable Time, each Issuer Free Writing Prospectus (as defined
below) identified on Schedule II , the Statutory
Prospectus (as defined below) and the information agreed to in
writing by the Company and the Underwriters as the
information
3
to be conveyed
orally, or pursuant to a communication meeting the requirements of
Rule 134 of the 1933 Act, by the Underwriters to purchasers of the
Securities at the Applicable Time as set forth on
Schedule II , all considered together (collectively,
the “ General Disclosure Package ”), did not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
The
representations and warranties in the preceding three paragraphs
shall not apply to statements in or omissions from the Registration
Statement, or any post-effective amendment thereto, or the
Prospectus or the General Disclosure Package, or any amendments or
supplements thereto, made in reliance upon and in conformity with
information furnished to the Company in writing by the
Representatives on behalf of the Underwriters expressly for use
therein (that information being limited to that described in the
last sentence of Section 8(b) hereof).
As used in this
subsection and elsewhere in this Agreement:
“
Applicable Time ” means 5:10 p.m. (New York City time)
on June 23, 2009 or such other time as agreed by the Company
and the Underwriters.
“ Issuer
Free Writing Prospectus ” means any “issuer free
writing prospectus,” as defined in Rule 433 of the 1933
Act Regulations (“ Rule 433 ”), relating to
the Securities (including any identified on Schedule II
hereto) that (i) is required to be filed with the Commission
by the Company, or (ii) is a “road show that is a
written communication” within the meaning of
Rule 433(d)(8)(i), whether or not required to be filed with
the Commission, or (iii) is exempt from filing with the
Commission pursuant to Rule 433(d)(5)(i) because it contains a
description of the Securities or of the offering that does not
reflect the final terms, in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to
Rule 433(g).
“
Statutory Prospectus ” as of any time means the base
prospectus that is included in the Registration Statement and the
preliminary prospectus supplement relating to the Securities
immediately prior to that time, including the documents
incorporated or deemed incorporated by reference therein at such
time.
(b) The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement, the General Disclosure Package and the
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 1934 Act and the rules and regulations of
the Commission thereunder (the “ 1934 Act Regulations
”), as applicable, and, when read together with the other
information in the Registration Statement, the General Disclosure
Package or the Prospectus, as the case may be, (a) at the time
the Registration Statement became effective, (b) at the
earlier of the time the Prospectus was first used and the date and
time of the first contract of sale of the Securities, (c) at
the Closing Date and (d) at each Date of Delivery, if any, did
not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary
4
in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) (A) At
the original effectiveness of the Registration Statement,
(B) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the 1933 Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) of the 1933 Act Regulations) made
any offer relating to the Securities in reliance on the exemption
of Rule 163 of the 1933 Act Regulations, and (D) as of
the execution of this Agreement, the Company was and is a
“well-known seasoned issuer,” as defined in
Rule 405.
(d) (i) At
the original effectiveness of the Registration Statement,
(ii) at the earliest time after the original effectiveness of
the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the 1933 Act Regulations) of the Securities and
(iii) as of the execution of this Agreement (with such time of
execution being used as the determination date for purposes of this
clause (iii)), the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, without taking account
of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an
ineligible issuer.
(e) Each Issuer
Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or
notifies the Underwriters as described in Section 5(b) hereof, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, the General Disclosure Package or the
Prospectus, including any document incorporated or deemed
incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does not apply to statements in
or omissions from any such Issuer Free Writing Prospectus based
upon and in conformity with information furnished to the Company in
writing by the Representatives on behalf of the Underwriters
expressly for use therein (that information being limited to that
described in the last sentence of Section 8(b) hereof).
(f) The Company
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Maryland, with full
power and authority (corporate and other) to own or lease, as the
case may be, its properties and to operate its properties and
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company
is duly qualified to do business as a foreign corporation and is in
good standing in all other jurisdictions in which its ownership or
lease of property or the operation of its properties or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have, or reasonably be expected to
have, individually or in the aggregate, a material
5
adverse effect
on the condition (financial or otherwise), business, earnings,
properties, assets or prospects of the Transaction Entities and
each direct or indirect subsidiary of the Company, other than MHC
Trust and the Operating Partnership (each a “
Subsidiary ” and collectively, the “
Subsidiaries ”), taken as a whole, whether or not
arising from transactions in the ordinary course of business
(“ Material Adverse Effect ”).
(g) The Operating
Partnership has been duly formed and is validly existing as a
limited partnership in good standing under the laws of the State of
Illinois, is duly qualified to do business and is in good standing
as a foreign limited partnership in each jurisdiction in which its
ownership or lease of property or the operation of its properties
or the conduct of its business requires such qualification, except
where the failure to so qualify would not have, or reasonably be
expected to have, a Material Adverse Effect, and has full power and
authority necessary to own or lease, as the case may be, its
properties and to operate its properties and conduct its business
as described in the Registration Statement, the General Disclosure
Package and the Prospectus and to enter into and perform its
obligations under this Agreement; MHC Trust has been duly formed
and is validly existing as a real estate investment trust in good
standing under the laws of the State of Maryland, is duly qualified
to do business and is in good standing in each jurisdiction in
which its ownership or lease of property or the operation of its
properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not
have, or reasonably be expected to have, a Material Adverse Effect,
and has full power and authority necessary to own or lease, as the
case may be, its properties and to operate its properties and
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus; and MHC Trust is
the sole general partner of the Operating Partnership.
Additionally, the Company will contribute the net proceeds from the
sale of the Firm Securities and, to the extent any portion of such
overallotment option is exercised subsequent to the Closing Date,
the Option Securities to the Operating Partnership in exchange for
a number of common units of limited partnership in the Operating
Partnership (“ OP Units ”) equal to the number
of Firm Securities and, if applicable, Option Securities
issued.
(h) Each direct or
indirect significant subsidiary (as such term is defined in Rule
1-02 of Regulation S-X under the 1933 Act Regulations) of the
Company and the subsidiaries included on Exhibit 21 to the
Company’s annual report on Form-10-K for the year ended
December 31, 2008, other than MHC Trust and the Operating
Partnership (each, a “ Significant Subsidiary ”
and collectively, the “ Significant Subsidiaries
”), has been duly formed and is validly existing as a
corporation, limited partnership or limited liability company, as
the case may be, in good standing under the laws of the
jurisdiction of its organization, with full power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus, except where the
failure to be in good standing would not have, or be reasonably
expected to have, a Material Adverse Effect, and is duly qualified
to do business as a foreign corporation, partnership or limited
liability company in good standing in all other jurisdictions in
which its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have, or be reasonably expected to
have, a Material Adverse Effect; all of the issued and outstanding
capital stock or other
6
ownership
interests of MHC Trust and each Significant Subsidiary have been
duly authorized and validly issued and are fully paid and
nonassessable and were offered in compliance with all applicable
laws (including, without limitation, federal and state securities
laws) in all material respects; and except as described in the
Registration Statement, the General Disclosure Package and the
Prospectus, MHC Trust’s ownership interests and each
Significant Subsidiary’s capital stock or other ownership
interests are currently owned and will, immediately following the
Closing Date and each Date of Delivery, continue to be owned by the
Company, directly or through subsidiaries, free and clear of any
security interests, liens, mortgages, encumbrances, pledges,
claims, defects or other restrictions of any kind (collectively,
“ Liens ”), except where such Liens would not
have, or reasonably be expected to have, a Material Adverse Effect.
None of such equity interests were issued in violation of the
preemptive or other similar rights of any securityholder of MHC
Trust or such Significant Subsidiary. Except as described in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or subscribe for equity
interests or other securities of MHC Trust or any Significant
Subsidiary.
(i) The
Company’s authorized capitalization is as set forth in the
documents incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus; the capital
stock of the Company conforms in all material respects to the
description thereof contained in the Registration Statement, the
General Disclosure Package and the Prospectus under the caption
“ Description of Common Stock ;” the outstanding
shares of Common Stock are duly listed and admitted and authorized
for trading on the New York Stock Exchange, Inc. (the “
NYSE ”) and, at the Closing Date, the Securities will
have been approved for listing on the NYSE, subject to official
notice of issuance; and, except as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding.
(j) The Securities
and all other outstanding shares of capital stock of the Company,
including any restricted shares of common stock, have been duly and
validly authorized; all outstanding shares of capital stock of the
Company are, and, when the Securities to be issued and sold by the
Company have been issued and delivered and paid for in accordance
with this Agreement on the Closing Date and each Date of Delivery,
such Securities will have been, validly issued, fully paid and
nonassessable, will have been, or will be, offered and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws) in all material respects, will
conform, in all material respects, to the description thereof
contained in the Registration Statement, the General Disclosure
Package and the Prospectus and will be substantially in the form
filed or incorporated by reference, as the case may be, as exhibits
to the Registration Statement; and the stockholders of the Company
have no preemptive or other similar rights with respect to the
Securities to be issued and sold by the Company. Upon payment of
the purchase price and issuance and delivery of the Securities to
be issued and sold by the Company in accordance herewith, the
Underwriters will receive good, valid and
7
marketable
title to such Securities, free and clear of all Liens. The
certificates to be used to evidence the Securities will be in
substantially the form filed as an exhibit to the Registration
Statement and will, on the Closing Date and each Date of Delivery,
be in proper form and will comply in all material respects with all
applicable legal requirements, the requirements of the charter and
by-laws of the Company and the requirements of the NYSE.
(k) The
outstanding OP Units have been duly authorized for issuance by the
Operating Partnership, and are validly issued. The OP Units have
been offered, issued and sold in compliance with all applicable
laws (including, without limitation, federal and state securities
laws) in all material respects and conform to the description
thereof contained in the Registration Statement, the General
Disclosure Package and the Prospectus in all material respects.
None of the OP Units were issued in violation of the preemptive or
other similar rights of any securityholder of the Operating
Partnership. Except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, there are no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or subscribe for OP Units or other securities of the
Operating Partnership.
(l) The OP Units
to be issued by the Operating Partnership in connection with the
Company’s contribution of the net proceeds from the sale of
the Securities to the Operating Partnership have been duly
authorized for issuance by the Operating Partnership to the
Company, and at the Closing Date for the Firm Securities or the
Date of Delivery for the Option Securities, as applicable, will be
validly issued and fully paid. Such OP Units will be exempt from
registration or qualification under the 1933 Act and applicable
state securities laws. None of the OP Units will be issued in
violation of the preemptive or other similar rights of any
securityholder of the Operating Partnership.
(m) Except as
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no contracts, agreements or
understandings between the Transaction Entities and any person that
would give rise to a valid claim against the Transaction Entities
or any Underwriter for a brokerage commission, finder’s fee
or other like payment in connection with this offering.
(n) Except as
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, 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 1933 Act with respect to any securities or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement.
(o) None of the
Transaction Entities or the Subsidiaries (i) is in violation
of its charter, declaration of trust, by-laws, certificate of
formation, operating agreement or partnership agreement or similar
organizational or governing documents, (ii) to the knowledge
of the Company, is in default (whether with or without the giving
of notice or passage of time or both) in the performance or
observance of any obligation, agreement, term, covenant or
condition contained in a contract, indenture, mortgage, deed of
trust,
8
loan or credit
agreement, note, lease, ground lease, development agreement,
reciprocal easement agreement, deed restriction, utility agreement,
management agreement or other agreement or instrument to which it
is a party or by which it is bound, or to which any of the
Properties (as hereinafter defined) or any of its other property or
assets is subject (collectively, “ Agreements and
Instruments ”), or (iii) to the knowledge of the
Company, is in violation of any statute, law, ordinance, rule,
regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority to which it or the Properties or any of its other
properties or assets is subject, except, in the case of clauses
(ii) and (iii), for such defaults or violations that would not
have, or reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(p) No consent,
approval, authorization, filing with or order of any court or
governmental agency or body is required to be made or obtained by
the Transaction Entities or the Subsidiaries in connection with the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, filings or orders (i) as have been
obtained under the 1933 Act, or (ii) as may be required under
the state securities or blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated herein and in the
General Disclosure Package and the Prospectus.
(q) The execution,
delivery and performance of this Agreement by the Transaction
Entities party hereto and consummation of the transactions
contemplated hereby do not and will not (whether with or without
the giving of notice or passage of time or both) conflict with or
result in a breach or violation of any of the terms and provisions
of, or constitute a default (or give rise to any right of
termination, acceleration, cancellation, repurchase or redemption)
or Repayment Event (as hereinafter defined) under, or result in the
creation or imposition of a Lien (other than those described in the
Registration Statement, the General Disclosure Package and the
Prospectus) upon any of the properties or assets of any of the
Transaction Entities or the Subsidiaries pursuant to, (i) any
statute, law, rule, ordinance, regulation, judgment, order or
decree of any court, domestic or foreign, regulatory body,
administrative agency, governmental body, arbitrator or other
authority, domestic or foreign, having jurisdiction over any of the
Transaction Entities or the Subsidiaries or any of their properties
or assets, (ii) any term, condition or provision of any
Agreements or Instruments, or (iii) the charter, declaration
of trust, by-laws, certificate of formation, operating agreement or
partnership agreement or similar organizational or governing
documents, as applicable, of any of the Transaction Entities or the
Subsidiaries, except, in the case of clauses (i) and (ii), for
such conflicts, breaches, defaults, violations, rights, Repayment
Events or Liens that are disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus or as would not
have, or reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. The Company has full power
and authority to authorize, issue and sell the Securities as
contemplated by this Agreement. As used herein, “
Repayment Event ” means any event or condition which,
without regard to compliance with any notice or other procedural
requirements, gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s
9
behalf) the
right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by any of the Transaction Entities
or the Subsidiaries.
(r) This Agreement
has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, and the Second Amended and
Restated Agreement of Limited Partnership of the Operating
Partnership, as the same has been or may be amended and/or restated
from time to time (the “ Operating Partnership
Agreement ”), has been duly and validly authorized,
executed and delivered by the Transaction Entities party thereto;
and each of this Agreement and the Operating Partnership Agreement,
assuming due authorization, execution and delivery by the parties
thereto (other than the Transaction Entities), is a valid and
binding agreement of each of the Transaction Entities party
thereto, enforceable against the Transaction Entities party thereto
in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, or other similar laws relating to creditors’
rights and general principles of equity and except as rights to
indemnify and contribution thereunder may be limited by applicable
law or policies underlying such law.
(s) The
Transaction Entities and the Subsidiaries possess all certificates,
authorities, licenses, consents, approvals, permits and other
authorizations (“ Licenses ”) issued by
appropriate governmental agencies or bodies or third parties
necessary to conduct the business now operated by them, are in
compliance with the terms and conditions of all such Licenses, and
have not received any notice of proceedings relating to the
revocation or modification of any such Licenses except where the
failure to possess any such License or to comply with any of its
terms and conditions, or an adverse determination in any
proceeding, would not individually or in the aggregate have, or
reasonably be expected to have, a Material Adverse
Effect.
(t) The
consolidated financial statements of the Company and its
subsidiaries included or incorporated or deemed incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus, together with the related schedules and
notes, present fairly in all material respects the consolidated
financial position of the Company at the dates indicated and the
consolidated statements of operations, changes in
stockholders’ equity and cash flows of the Company for the
periods specified; and said financial statements have been prepared
in conformity with U.S. generally accepted accounting principles
(“ GAAP ”) applied on a consistent basis
throughout the periods involved (except as may be indicated in the
notes thereto and subject to normal year-end adjustments in the
case of any unaudited interim financial statements) and have been
prepared on a consistent basis with the books and records of the
Company. The supporting schedules included or incorporated or
deemed incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information
included or incorporated or deemed incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the financial
statements included or incorporated or deemed incorporated by
reference in the Registration
10
Statement, the
General Disclosure Package and the Prospectus. No other historical
or pro forma financial statements (or schedules) are required by
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations to be included or incorporated or deemed
incorporated by reference in the Registration Statement or the
Prospectus. All disclosures contained in the Registration
Statement, the General Disclosure Package or the Prospectus, if
any, regarding “non-GAAP financial measures” (as such
term is defined by the rules and regulations of the Commission)
comply with Regulation G under the 1934 Act and Item 10
of Regulation S-K of the 1933 Act Regulations, to the extent
applicable.
(u) Ernst &
Young LLP, who certified the financial statements, and supporting
schedules and historical summaries of revenues and certain
operating expenses for the properties related thereto included or
incorporated or deemed to be incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus and delivered the initial letter referred to in Section
6(e) hereof, are independent registered certified public
accountants as required by the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations.
(v) The Company,
beginning with its taxable year ended December 31, 1993 has
been organized and operated, and as of the Closing Date and each
Date of Delivery, if any, will continue to be organized and
operated, in conformity with the requirements for qualification and
taxation as a real estate investment trust (a “REIT”)
under the Internal Revenue Code 1986, as amended (the
“Code”), and the current and proposed method of
operation of the Company, as described in the Registration
Statement, the General Disclosure Package and the Prospectus, will
permit the Company to continue to meet the requirements for
qualification and taxation as a REIT under the Code for so long as
the Board of Directors of the Company deems it in the best
interests of the Company’s stockholders to remain so
qualified for taxation as a REIT under the Code.
(w) All federal,
state, local and foreign tax returns or valid extensions filed for,
and reports required to be filed by any of the Transaction Entities
or the Subsidiaries, in each case, to the extent material
(“Returns”), have been timely filed (to the extent
certain Returns were not timely filed, any delay has not had, and
is not reasonably expected to have a Material Adverse Effect); all
such Returns are true, correct and complete in all material
respects; and all federal, state, county, local or foreign taxes,
charges, fees, levies, fines, penalties or other assessments,
including all net income, gross income, sales and use, ad valorem,
transfer, gains, profits, excise, franchise, real and personal
property, gross receipts, capital stock, disability, employment,
pay-roll, license, estimated, stamp, custom duties, severance or
withholding taxes or charges imposed by any Governmental Authority
(as defined hereafter) (including any interest and penalties (civil
or criminal) on or additions to any such taxes and any expenses
incurred in connection with the determination, settlement or
litigation of any tax liability), in each case, to the extent
material (“Taxes”), shown in such Returns or on
assessments received by any of the Transaction Entities or the
Subsidiaries or otherwise due and payable or claimed to be due and
payable by any Governmental Authority, have been paid, except for
any such tax, charge, fee, levy, fine, penalty or other assessment
that (i) is currently being contested in good faith,
(ii) would not have, or reasonably be expected to have, a
Material
11
Adverse Effect
or (iii) is described in the Registration Statement, the
General Disclosure Package and the Prospectus. None of the
Transaction Entities or the Subsidiaries has requested any
extension of time within which to file any Return, which Return has
not since been filed within the extended time (to the extent any
such Returns were not filed within the extended time, it has not
had, and is not reasonably expected to have a Material Adverse
Effect). None of the Transaction Entities or the Subsidiaries has
executed any outstanding waivers or comparable consents regarding
the application of the statute of limitations with respect to any
Taxes or Returns that has had or is reasonably expected to have, a
Material Adverse Effect. No audits or other administrative
proceedings or court proceedings are presently pending or
threatened against any of the Transaction Entities or the
Subsidiaries with regard to any Taxes or Returns of any of the
Transaction Entities or the Subsidiaries that has had or is
reasonably expected to have, a Material Adverse Effect.
(x) Each of the
Transaction Entities and the Subsidiaries has complied in all
material respects with the provisions of the Code relating to the
payment and withholding of Taxes, including, without limitation,
the withholding and reporting requirements under Sections 1441
through 1446, 3401 through 3406, and 6041 and 6049 of the Code, as
well as similar provisions under any other laws, and has, within
the time and in the manner prescribed by law, withheld and paid
over to the proper governmental authorities all material amounts
required in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder, or other third
party.
(y) None of the
Transaction Entities or the Subsidiaries (including any predecessor
entities) has distributed, or prior to the later of the Closing
Date (or the final Date of Delivery) and the completion of the
distribution of the Securities, will distribute, any offering
material in connection with the offering or sale of the Securities
other than the Registration Statement, the General Disclosure
Package and the Prospectus and any other written materials
consented to by the Representatives pursuant to Section 5(f)
hereof) (it being understood that no representation is made with
respect to any other materials distributed by the
Representatives).
(z) Each of the
Transaction Entities and the Subsidiaries is in compliance, in all
material respects, with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”); no “reportable event”
(as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which any of
the Transaction Entities would have any liability, other than as
would not reasonably be expected to have a Material Adverse Effect;
none of the Transaction Entities or the Subsidiaries has incurred
or expects to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “pension
plan” or (ii) Sections 412 or 4971 of the Code,
including the regulations and published interpretations thereunder
other than as would not reasonably be expected to have a Material
Adverse Effect; and each “pension plan” for which any
of the Transaction Entities or the Subsidiaries would have any
liability and that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects, and nothing
has occurred, whether by action or by failure to act, which would
cause the loss of such qualification, except where the
failure
12
to be so
qualified would not have, or reasonably be expected to have, a
Material Adverse Effect.
(aa) The assets of
the Transaction Entities and the Subsidiaries do not constitute
“plan assets” of an ERISA regulated employee benefit
plan.
(bb) (1) The
Transaction Entities or the Subsidiaries or any other subsidiary or
joint venture in which the Transaction Entities or any Subsidiary
owns an interest, as the case may be, will have good and marketable
fee simple title or leasehold title to all of the properties and
other assets owned or leased by the Transaction Entities, the
Subsidiaries or the applicable subsidiary or joint venture (the
“ Properties ”), in each case, free and clear of
all Liens, except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus or such as would not
have, or reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; (2) all Liens on or
affecting the Properties that are required to be disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus are disclosed therein and none of the Transaction
Entities or the Subsidiaries is in default under any such Lien
except for such defaults that would not have, or reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect; (3) all of the leases and subleases material
to the business of the Transaction Entities and the Subsidiaries,
taken as a whole, and under which the Transaction Entities or any
of the Subsidiaries holds properties described in the Registration
Statement, the General Disclosure Package and the Prospectus, are
in full force and effect, and none of the Transaction Entities or
any Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of any of
the Transaction Entities or any Subsidiary under any of such leases
or subleases, or affecting or questioning the rights of any of the
Transaction Entities or such Subsidiary to the continued possession
of the leases or subleased premises under any such lease or
sublease; (4) except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, none
of the Transaction Entities or the Subsidiaries is in violation of
any municipal, state or federal law, rule or regulation concerning
the Properties or any part thereof which violation would have, or
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; (5) except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, each of the Properties complies with all applicable
zoning laws, laws, ordinances, regulations, development agreements,
reciprocal easement agreements, ground or airspace leases and deed
restrictions or other covenants, except where the failure to comply
would not have, or reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect or could not result in
a forfeiture or reversion of title; and (6) except as
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, none of the Transaction Entities or the
Subsidiaries has received from any Governmental Authority any
written notice of any condemnation of or zoning change materially
affecting the Properties or any part thereof, and none of the
Transaction Entities or the Subsidiaries knows of any such
condemnation or zoning change which is threatened and which if
consummated would have, or reasonably be expected to have,
individually or in the aggregate, a Material Adverse
Effect.
13
(cc) Each of the
Transaction Entities and the Subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are generally deemed prudent and customary
in the businesses in which they are or will be engaged as described
in the Registration Statement, the General Disclosure Package and
the Prospectus; all policies of insurance and fidelity or surety
bonds insuring any of the Transaction Entities or the Subsidiaries
or their respective businesses, assets, employees, officers and
directors are in full force and effect; each of the Transaction
Entities and the Subsidiaries is in compliance with the terms of
such policies and instruments in all material respects; except as
described in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no material claims by any of
the Transaction Entities or the Subsidiaries under any such policy
or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; and,
except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, none of the Transaction
Entities or the Subsidiaries has been refused any insurance
coverage sought or applied for; and none of the Transaction
Entities or the Subsidiaries has any reason to believe that any of
them will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue to conduct its
business as currently conducted or as proposed to be conducted in
the Registration Statement, the General Disclosure Package and the
Prospectus at a cost that would not have a Material Adverse
Effect.
(dd) Except as set
forth in the Registration Statement, the General Disclosure Package
and the Prospectus, the mortgages and deeds of trust encumbering
the Properties owned or leased by any of the Transaction Entities
or the Subsidiaries are described in the Registration Statement,
the General Disclosure Package and the Prospectus and are not
convertible and none of the Transaction Entities, the Subsidiaries,
or any person affiliated therewith holds a participating interest
therein, and such mortgages and deeds of trust are not
cross-defaulted or cross-collateralized to any property other than
the Properties.
(ee) The Operating
Partnership or a Subsidiary has title insurance on the fee
interests and/or leasehold interests in each of the Properties
covering such risks and in such amounts as are commercially
reasonable for the assets owned or leased by them and that are
consistent with the types and amounts of insurance typically
maintained by owners and operators of similar properties, and in
each case such title insurance is in full force and
effect.
(ff) Except as
otherwise disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, (i) the Transaction
Entities and the Subsidiaries and the Properties have been and are
in material compliance with, and none of the Transaction Entities
or the Subsidiaries has any material liability under, applicable
Environmental Laws (as hereinafter defined), (ii) none of the
Transaction Entities, the Subsidiaries, or, to the knowledge of the
Transaction Entities, the prior owners or occupants of the
Properties at any time or any other person or entity has at any
time released (as such term is defined in Section 101(22) of
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. §§
9601-9675
14
(“
CERCLA ”)) or otherwise disposed of or dealt with,
Hazardous Materials (as hereinafter defined) on, to or from the
Properties or other assets owned by the Transaction Entities or the
Subsidiaries, except for such releases or dispositions as would not
be reasonably likely to cause the Transaction Entities or the
Subsidiaries to incur material liability, (iii) the
Transaction Entities do not intend to use the Properties or other
assets owned by any of the Transaction Entities or the Subsidiaries
or any subsequently acquired properties, other than in material
compliance with applicable Environmental Laws, (iv) none of
the Transaction Entities or the Subsidiaries knows of any seepage,
leak, discharge, release, emission, spill, or dumping of Hazardous
Materials into waters (including, but not limited to, groundwater
and surface water) on, beneath or adjacent to the Properties, or
onto lands or other assets owned by the Transaction Entities or the
Subsidiaries from which Hazardous Materials might seep, flow or
drain into such waters except for such as would not be reasonably
likely to cause the Transaction Entities or the Subsidiaries to
incur material liability, (v) none of the Transaction Entities
or the Subsidiaries has received any notice of, or has any
knowledge of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or
pursuant to any Environmental Law or common law by any governmental
or quasi-governmental body or any third party with respect to the
Properties or other assets described in the Registration Statement,
the General Disclosure Package and the Prospectus or arising out of
the conduct of the Transaction Entities or the Subsidiaries, except
for such claims that would not be reaso
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