Citigroup Global Markets Inc.
KeyBanc Capital Markets Inc.
Citigroup
Global Markets Inc.
KeyBanc Capital Markets Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street, 32nd Floor
New York, NY 10013
Cogdell Spencer
Inc., a corporation organized under the laws of the State of
Maryland (the ’ Company ”), proposes to issue
and sell to the several underwriters named in Schedule I
hereto (the ’ Underwriters ”), for whom you (the
“ Representatives ”) are acting as
representatives, 20,000,000 shares of its common stock, $0.01 par
value (“ Common Stock ”) (said shares to be
issued and sold by the Company being hereinafter called the “
Underwritten Securities ”). The Company also proposes
to grant to the Underwriters an option to purchase up to 3,000,000
additional shares of Common Stock (the “ Option
Securities ”; the Option Securities, together with the
Underwritten Securities, being hereinafter called the “
Securities ”). Certain terms used herein are defined
in Section 19 hereof.
The Company is the
sole general partner of Cogdell Spencer LP, a Delaware limited
partnership (the “ Operating Partnership ”), the
Company’s operating partnership subsidiary.
1.
Representations and Warranties . Each of the Company and the
Operating Partnership, jointly and severally, represents and
warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company
has prepared and filed with the Commission a registration statement
on Form S-3 (File No. 333-138426), which contains a base
prospectus (the “ Base Prospectus ”), to be used
in connection with the public offering and sale of the Securities.
Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, at each time of
effectiveness under the Securities Act, including any required
information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act
or the Exchange Act, is called the “ Registration
Statement .” Any registration statement filed by the
Company pursuant to Rule 462(b) under the Securities Act is called
the “ Rule 462(b) Registration Statement ,”
and from and after the date and time of filing of the Rule 462(b)
Registration Statement the term “Registration
Statement” shall include the Rule 462(b) Registration
Statement. Any preliminary prospectus supplement to the Base
Prospectus
that describes
the Securities and the offering thereof and is used prior to filing
of the final prospectus is called, together with the Base
Prospectus, a “preliminary prospectus.” The term
“ Prospectus ” shall mean the final prospectus
relating to the Securities that is first filed pursuant to Rule
424(b) after the date and time that this Agreement is executed and
delivered by the parties hereto (the “ Execution Time
”). Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act; any
reference to any amendment or supplement to any preliminary
prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such preliminary
prospectus or Prospectus, as the case may be, under the Exchange
Act, and incorporated by reference in such preliminary prospectus
or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in
the Registration Statement.
(b) On the
Effective Date, the Registration Statement did or will, and when
the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein) and on any date
on which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Prospectus (and
any supplements thereto) will, comply in all material respects with
the applicable requirements of the Securities Act; each preliminary
prospectus and the Prospectus when filed was identical to the copy
thereof delivered to the Underwriters for use in connection with
the offer and sale of the Securities; on the Effective Date and at
the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the
Effective Date, the Prospectus, if not filed pursuant to
Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the
Prospectus (together with any supplement thereto) will not, include
any 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; provided , however , that the Company
makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information described as such in
Section 8 hereof. The Company has complied to the
Commission’s satisfaction with all requests of the Commission
for additional or supplemental information. No stop order
suspending the effectiveness of the Registration Statement or any
part thereof has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by
the Commission or by the state securities authority of any
jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued and no
2
proceeding for
that purpose has been instituted by the Commission or by the state
securities authority of any jurisdiction.
(c) All documents
filed by the Company pursuant to Sections 12, 13, 14 or 15 of
the Exchange Act and incorporated by reference into the Prospectus,
when they became effective or were filed with the Commission, as
the case may be, complied in all material respects with the
requirements of the Securities Act and the rules thereunder or the
Exchange Act and the rules thereunder, as applicable. Any further
documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, 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 the
rules and regulations of the Commission thereunder.
(d) As of 8:30
a.m. (Eastern time) on the date of execution and delivery of this
Agreement (the “ Applicable Time ”), the
Disclosure Package did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information
furnished to the Company by the Representatives specifically for
use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(e) (i) At
the time of filing the Registration Statement and (ii) as of
the Execution Time (with such date being used as the determination
date for purposes of this clause (ii)), 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.
(f) Each Issuer
Free Writing Prospectus, if any, as of its issue date and at all
subsequent times through the completion of the offering of
Securities under this Agreement or until any earlier date that the
Company notified or notifies the Representatives as described in
the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, including any
prospectus or prospectus supplement that is or becomes part of the
Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Company has promptly
notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing two sentences
do not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Representatives
specifically for use therein, it being understood and agreed that
the only
3
such
information furnished by the Representatives consists of the
information described as such in Section 8 hereof.
(g) (i) The
Company (x) has been duly incorporated and is, or will be as
of the Closing Date, validly existing as a corporation in good
standing under the laws of the State of Maryland with full
corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Disclosure Package and the Prospectus, and to enter into and
perform its obligations under this Agreement and, as general
partner of the Operating Partnership, through its wholly-owned
Maryland business trust, to cause the Operating Partnership to
enter into and perform the Operating Partnership’s
obligations under this Agreement and (y) is duly qualified to
do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification,
except where the failure to be so qualified and in good standing
would not reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiaries (as
defined below) taken as a whole.
(ii)
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 Delaware with full power and authority to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Disclosure Package and the
Prospectus and to enter into and perform its obligations under this
Agreement, and is duly qualified to do business and is in good
standing as a foreign limited partnership under the laws of each
jurisdiction which requires such qualification, except where the
failure to be so qualified and in good standing would not
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries. At the Closing
Date, the aggregate percentage interests of the Company and the
limited partners in the Operating Partnership will be as set forth
in the Prospectus; provided, that to the extent any portion of the
option to purchase additional shares described in Section 2(b)
hereof is exercised at the Closing Date, the percentage interest of
the Company and of such limited partners in the Operating
Partnership will be adjusted accordingly.
(iii)
Each Subsidiary of the Company listed on Schedule 1(c) hereto (each
a “ Subsidiary ” and together, the “
Subsidiaries ”) has been duly formed and is, or will
be as of the Closing Date, validly existing as a corporation,
business trust, limited liability company or limited partnership,
as the case may be, in good standing under the laws of the
jurisdiction in which it is chartered or organized with full power
and authority (corporate and other) to own or lease, as the case
may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Prospectus, and is duly
qualified to do business as a foreign corporation, business trust,
limited liability company or limited partnership, as the case may
be, and is in good standing under the laws of each jurisdiction
which requires such qualification.
(h) The statements
in the Disclosure Package and the Prospectus under the headings
“Material U.S. Federal Income Tax Considerations” and
“U.S. Federal Income Tax Considerations” insofar as
such statements summarize legal matters, agreements,
4
documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or
proceedings.
(i) All the
outstanding shares of capital stock or other ownership interests of
each Subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Disclosure Package and the
Prospectus, all outstanding shares of capital stock or other
ownership interests of the Subsidiaries are owned by the Company
either directly or through wholly owned Subsidiaries free and clear
of any perfected security interest or any other security interests,
claims, mortgages, pledges, liens, encumbrances or other
restrictions of any kind (collectively, “ Liens
”), except for Liens securing indebtedness as described in
the Disclosure Package and the Prospectus. Except as set forth in
the Disclosure Package and the Prospectus, there are no outstanding
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities or interests for capital stock or other
ownership interests of any Subsidiary of the Company.
(j) The
Company’s authorized equity capitalization is as set forth in
the Disclosure Package and the Prospectus under the caption
“Capitalization”; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Disclosure Package and the Prospectus; the
outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange; the certificates for
the Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to subscribe for the Securities; and,
except as set forth in the 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 Common Stock of or
ownership interests in the Company are outstanding; all offers and
sales of the Company’s shares of Common Stock prior to the
date hereof were at all relevant times duly registered under the
Securities Act or were exempt from the registration requirements of
the Securities Act and were duly registered or the subject of an
available exemption from the registration requirements of the
applicable state securities or blue sky laws.
(k) The
outstanding units of limited partnership (“ Units
”) of the Operating Partnership have been duly authorized for
issuance by the Operating Partnership and are validly issued and
fully paid. None of the Units were issued in violation of the
preemptive or other similar rights of any security holder of the
Operating Partnership or any other person or entity. Except as set
forth in the Disclosure Package and the Prospectus, there are no
outstanding options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities or interests for, Units
or other ownership interests of the Operating Partnership. All
offers and sales of the Company’s Units prior to the
date
5
hereof were at
all relevant times duly registered under the Securities Act or were
exempt from the registration requirements of the Securities Act and
were duly registered or the subject of an available exemption from
the registration requirements of the applicable state securities or
blue sky laws.
(l) There is no
agreement, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Prospectus and any document
that is incorporated by reference therein under the headings
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations—Liquidity and Capital
Resources,” “Cogdell Spencer LP Partnership
Agreement,” “Description of Common Stock,”
“Description of Preferred Stock,” “Description of
Depositary Shares,” “Description of Warrants,”
“Description of Rights,” and “Certain Provisions
of Maryland Law and of our Charter and Bylaws,” and insofar
as such statements summarize legal matters, agreements, documents
or proceedings discussed therein, are accurate and fair summaries
of such legal matters, agreements, documents or
proceedings.
(m) There are no
material 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 by the Company, the Operating
Partnership, or their Subsidiaries in connection with the execution
and delivery of this Agreement or the issuance by the Company or
sale and delivery by the Company of the Securities.
(n) This Agreement
has been duly authorized, executed and delivered by the Company and
the Operating Partnership; this Agreement constitutes a legally
valid and binding obligation of each of the Company and the
Operating Partnership, enforceable against each of the Company and
the Operating Partnership in accordance with its terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, moratorium
and other similar laws affecting creditors’ rights and
general principles of equity, and except as to rights to indemnity
and contribution thereunder may be limited by applicable law or
policies underlying such law.
(o) Each of the
Company and the Operating Partnership is not and, after giving
effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus,
will not be an “investment company” as defined in the
Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(p) There are no
persons with registration or other similar rights to have any
equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement.
(q) No consent,
approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained
under the Securities Act, such as may be required under the blue
sky laws of any jurisdiction in connection with the
6
purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus or the absence of which,
individually or in the aggregate, would not reasonably be expected
to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of
business.
(r) Neither the
issuance and sale of the Securities nor the consummation of any
other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter or bylaws of the Company or the
organizational or other governing documents of any of its
Subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, franchise, note, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its Subsidiaries is a party or bound or
to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any of its Subsidiaries or any of its or their properties,
except, in the case of clauses (ii) or (iii) above, for
such conflicts, breaches, violations, liens, charges or
encumbrances that, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business.
(s) Except as set
forth in the Disclosure Package and the Prospectus, and any
document that is incorporated by reference therein, there are no
contracts, agreements or understandings between the Company or the
Operating Partnership and any person granting such person the right
to require the Company or the Operating Partnership to file a
registration statement under the Securities Act with respect to any
securities of the Company or the Operating Partnership owned or to
be owned by such person or to require the Company or the Operating
Partnership to include such securities in any securities being
registered pursuant to any other registration statement filed by
the Company or the Operating Partnership under the Securities
Act.
(t) The financial
statements and schedules of the Company, including the notes
thereto, included or incorporated by reference in the Prospectus
and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated,
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The summary financial
data set forth under the captions “Selected Financial
Data” and “Capitalization” included or
incorporated by reference in the Prospectus and Registration
Statement fairly present, on the basis stated therein, the
information included therein.
7
(u) No action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its Subsidiaries or its or their property is pending or, to the
best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto).
(v) (i) The
Company or its Subsidiaries have fee simple title or insurable
leasehold title to all of the properties described in the
Disclosure Package and the Prospectus, and any document that is
incorporated by reference therein, as owned or leased by them and
the improvements (exclusive of improvements owned by tenants)
located thereon (the “ Properties ” and
individually, a “ Property ”), in each case,
free and clear of all liens, encumbrances, claims, security
interests, restrictions and defects, except those that are
disclosed in the Disclosure Package and the Prospectus or that do
not materially and adversely affect the value of such Property and
do not materially and adversely interfere with the use made and
proposed to be made of such Property by the Company and any
Subsidiary; (ii) except as otherwise set forth in the
Disclosure Package and the Prospectus, the mortgages and deeds of
trust encumbering the Properties described in the Disclosure
Package and the Prospectus are not convertible into debt or equity
securities of the Company or the Operating Partnership and such
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized to any property not owned directly or
indirectly by the Company or its Subsidiaries; (iii) the
Company has provided true and complete copies of the mortgages and
deeds of trust to the Representatives, and neither the Company nor
any of its Subsidiaries is in default under any of the mortgages or
deeds of trust, nor has an event occurred which with the delivery
of notice and passing of a cure period would become a default under
any mortgage or deed of trust; (iv) neither the Company nor
any of its Subsidiaries has received from any governmental
authority any written notice of any condemnation of or zoning
change affecting the Properties or any part thereof, and none of
the Company or any Subsidiary knows of any such condemnation or
zoning change which is threatened and which if consummated would
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business; (v) each of the Properties complies with
all applicable codes, laws and regulations (including without
limitation, building and zoning codes, laws and regulations and
laws relating to access to the Properties), except if and to the
extent disclosed in the Disclosure Package and the Prospectus and
except for such failures to comply that would not individually or
in the aggregate reasonably be expected to materially affect the
value of such Property or interfere in any material respect with
the use made and proposed to be made of such Property by the
Company or any Subsidiary; (vi) a Subsidiary holds a valid
owner’s policy of title insurance for each Property insuring
such Subsidiary as the fee title owner or the leasehold
titleholder, and the Company and/or its Subsidiaries has the
benefit of such title insurance policies; (vii) true,
correct
8
and complete
copies of the leases, exhibits, schedules or other documents that
comprise the leases described in the “Properties”
section of the Disclosure Package and Prospectus, and any document
that is incorporated by reference therein, where the tenant has
been specifically identified have been provided to the Underwriters
or their counsel; and (viii) the Company has fully disclosed in the
Disclosure Package and the Prospectus which Properties are held by
the Company under a ground lease; the Company has supplied true and
complete copies of the ground leases to the Representatives; and
neither the Company nor any of its Subsidiaries is in default under
any ground lease, nor has an event occurred which with delivery of
notice and passing of a cure period would become a default under
any ground lease.
(w) Neither the
Company nor any Subsidiary is in violation or default of
(i) any provision of its charter, bylaws or other
organizational or governing documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject, except as otherwise set forth
in the Disclosure Package and the Prospectus, 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
or such Subsidiary or any of its properties, as
applicable.
(x) Deloitte &
Touche LLP, who have certified the Company’s financial
statements and supporting schedules included in the Prospectus, and
any document that is incorporated by reference therein, and
delivered their reports with respect to the audited financial
statements and schedules included in the Prospectus, are
independent registered public accountants within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder.
(y) The Company
and each of its Subsidiaries has filed all foreign, federal, state
and local tax returns that are required to be filed or has
requested extensions thereof, except in any case in which the
failure so to file would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto), and has paid all
taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such tax, assessment, fine or
penalty that is currently being contested in good faith or as would
not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto).
(z) No material
labor problem or dispute with the employees of the Company or any
of its Subsidiaries exists or, to the Company’s knowledge, is
threatened or imminent.
9
(aa) The Company
and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety
bonds insuring the Company or any of its Subsidiaries or their
respective businesses, assets, employees, officers and directors
are in full force and effect; the Company and its Subsidiaries are
in compliance with the terms of such policies and instruments in
all material respects; and there are no claims by the Company or
any of its Subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under
a reservation of rights clause; neither the Company nor any such
Subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such Subsidiary has
any reason to believe that it 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 its business at a cost that would not have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(bb) No Subsidiary
of the Company is currently prohibited, directly or indirectly,
from paying any dividends or distributions to the Company, from
making any other distribution on such Subsidiary’s capital
stock or equity interests, from repaying to the Company any loans
or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to
the Company or any other Subsidiary of the Company except pursuant
to the terms of any indebtedness set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(cc) The Company
and its Subsidiaries possess all valid and current licenses,
certificates, permits and other authorizations issued by the
appropriate federal or state regulatory authorities necessary to
conduct their respective businesses; and neither the Company nor
any such Subsidiary has received any written notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(dd) The Company
and each of its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles 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. Except
as disclosed in the Prospectus, since the date of
10
the
Company’s most recent audited balance sheet, there has been
(i) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(ii) no change in the Company’s internal control over
financial reporting that has materially and adversely affected, or
is reasonably likely to materially and adversely affect, the
Company’s internal control over financial
reporting.
(ee) The Company
has not taken, directly or indirectly, any action designed to or
that would constitute or that would reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(ff) The Company
and its Subsidiaries are (i) in compliance with any and all
applicable 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 and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not
received notice of any actual or potential liability under any
Environmental Laws, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). Neither the Company nor any
of the Subsidiaries has been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
Except as otherwise set forth in the Prospectus, to the knowledge
of the Company and the Operating Partnership, there have been no
and are no (i) aboveground or underground storage tanks; (ii)
polychlorinated biphenyls (“ PCBs ”) or
PCB-containing equipment; (iii) asbestos or asbestos
containing materials; (iv) lead based paints; (v) mold or
other airborne contaminants; or (vi) dry-cleaning facilities
in, on, under, or about any property owned by the Company, the
Operating Partnership or their Subsidiaries.
(gg) In the
ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the course of
which it identifies and evaluates 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
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
11
(hh) The minimum
funding standard under Section 302 of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (“ ERISA ”)
has been satisfied by each “pension plan” (within the
meaning of Section 3(2) of ERISA) which has been established
or maintained by the Company or any of its Subsidiaries, and each
such plan which is intended to be qualified under Section 401
of the Internal Revenue Code 1986, as amended (the “
Code ”) is so qualified and, to the knowledge of the
Company, no fact exists that would adversely affect such
qualification. Neither the Company nor any of its Subsidiaries
maintains or is required to contribute to a “welfare
plan” (as defined in Section 3(1) of ERISA) which
provides retiree or other post-employment welfare benefits or
insurance coverage (other than “continuation coverage”
(as defined in Section 602 of ERISA) or as otherwise required
by applicable law). Each “employee benefit plan”
(within the meaning of Section 3(3) of ERISA) established or
maintained by the Company and/or one or more of its Subsidiaries is
in compliance with the currently applicable provisions of ERISA,
except as would not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company or its
Subsidiary that sponsors such “employee benefit
plan.”
(ii) There is and
has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such,
to comply with any applicable provision of the Sarbanes Oxley Act
of 2002 and the rules and regulations promulgated in connection
therewith (the “ Sarbanes Oxley Act ”),
including, without limitation, Section 402 related to
loans.
(jj) Neither the
Company nor any of its Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its Subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (“
FCPA ”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, its Subsidiaries and, to
the knowledge of the Company and the Operating Partnership, its
affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(kk) The
operations of the Company and its Subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “ Money Laundering Laws
”) and no action, suit or proceeding by or before any court
or governmental agency,
12
authority or
body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(ll) Neither the
Company nor any of its Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“ OFAC ”); and the
Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(mm) The Company
and its Subsidiaries have good and marketable title to all personal
property owned by them, free and clear of all encumbrances and
defects; and all personal property held under lease by the Company
or any Subsidiary are held by it under valid, subsisting and
enforceable leases, in each case, with such exceptions as are not
material and do not interfere with the
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