Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement: (a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof). (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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)). (c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act. (d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. (e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus. (f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE. (g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed. (h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing. (i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”). (j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect. (k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X. (l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken. (m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken. (n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”). (o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects. (p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.” (q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.” (r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding. (s) Except as described in the Registration Statement 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. (t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE. (u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 8 contracts
Sources: Sales Agreement (Summit Hotel Properties, Inc.), Sales Agreement (Summit Hotel Properties, Inc.), Sales Agreement (Summit Hotel Properties, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to to, and agree with, the Agent that as of the date hereof, of this Agreement and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information Applicable Time (as defined in Section 9(a) hereof20(a).):
(A) At the original effectiveness time of filing the Registration StatementStatement on January 4, 2017, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under of the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of under Rule 163 under of the Securities Act, Act and (D) as of at the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under of the Securities Act (“Rule 405”)).
(c) , including not having been and not being an “ineligible issuer” as defined in Rule 405. The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) , and the Securities Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such a Rule 405 “automatic shelf registration statement”. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form.
(b) The Registration Statement became effective upon filing has (i) been prepared by the Company in conformity with the Commission. No requirements of the Securities Act; (ii) been filed with the Commission under the Securities Act; and (iii) become effective under the Securities Act.
(c) The Commission has not issued any order preventing or suspending the use of the Prospectus or suspending the effectiveness of the Registration Statement has been issued by the CommissionStatement, and no proceeding or examination for such purpose has been instituted or, to the Company’s knowledge, threatened by the Commission.
(d) The Company was not at the time of initial filing of the Registration Statement and at the earliest time thereafter that purpose the Company or pursuant to Section 8A another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act against Act) of the Shares, is not on the date hereof and will not be on the applicable Settlement Date an “ineligible issuer” (as defined in Rule 405). The Company or related has been since the time of initial filing of the Registration Statement and is currently primarily eligible to use Form S-3 (including General Instruction I.B.1 thereto) for the offering of the Placement Shares has been initiated or, to Shares.
(e) At the knowledge of respective times that the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-Statement became effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents the Agent pursuant to Rule 430B(f)(2) and at each Settlement Dateunder the Securities Act, the Registration Statement complied and will comply in all material respects to the requirements of the Securities Act. The Prospectus will comply, in all material respects when filed with the Commission pursuant to Rule 424(b) and as of each Applicable Time, to the requirements of the Securities Act. The documents incorporated by reference in the Prospectus conformed, and any further documents so incorporated will conform, in each case, when filed with the Commission, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) At the respective times that the Registration Statement and any amendment thereto became effective, and at each deemed effective date with respect to the Agent pursuant to Rule 430B(f)(2) of the Securities Act, and the Registration Statement did not not, and will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information relating to the Agent furnished to the Company in writing by the Agent expressly for inclusion therein.
(g) The Prospectus will not, as of the date its date, and of the Prospectus and any amendment or supplement theretoeach Applicable Time, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information relating to the Agent furnished to the Company and in writing by the Operating Partnership make no representation and warranty with respect to any Agent Information. expressly for inclusion therein.
(h) The documents incorporated, or to be incorporated, incorporated by reference in the Registration Statement Prospectus as of the Applicable Time and the Prospectus, at information in the time filed with the Commission, complied or will comply, in all respects to the requirements Prospectus as of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) date of the Securities Act or Rule 134 under Prospectus and as of the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)applicable Settlement Date, and did not, does not and will not include any information that conflictednot, conflicts or will conflict with the information contained in the Registration Statement or the Prospectusat such times, including any document incorporated by reference therein that has not been superseded or modified andas applicable, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in order the light of the circumstances under which they were made, not misleading.
(i) Each Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), as of the Applicable Time, did 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, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Free Writing Prospectus in reliance upon and in conformity with written information relating to the Agent furnished to the Company and in writing by the Operating Partnership make no representation and warranty with respect to any Agent Informationfor inclusion therein.
(ej) The Company was not an “ineligible issuer” (as defined Each Free Writing Prospectus conformed or will conform in Rule 405) as all material respects to the requirements of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all prospectus delivery and any filing requirements applicable to such Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Shares that would constitute a Free Writing Prospectus without the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge prior written consent of the Company, there are no contracts or documents of a character which are Agent and the Alternative Agents. The Company has retained in accordance with the Securities Act all Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectSecurities Act.
(k) Each “significant subsidiary” of the Company and its Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”Section 20(c)) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company and in good standing as a corporation or other business entity under the laws of the its jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus organization and is duly qualified to transact do business and is in good standing as a foreign corporation, limited partnership corporation or limited liability company, as the case may be, other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its business or its ownership or leasing of property businesses requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not could not, in the aggregate, reasonably be expected to have a material adverse change in the business, properties, operations, shareholders’ equity, condition (financial or otherwise) or prospects of the Company and of the Subsidiaries taken, as a whole (any such change a “Material Adverse EffectChange”); each of the Company and its Subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. All The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries listed on Schedule 5 attached hereto.
(l) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Common Shares have been duly authorized, are authorized and validly issued, are fully paid and non-assessable, have been conform to the description thereof contained in the Prospectus and were issued in compliance with applicable federal and state securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar rightsright. Except for the issuance of OP Units (as disclosed in defined below) by the Registration Statement and the Prospectus, Operating Partnership or other securities of the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all its subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock Form 8-K of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into purchase or exchange any securities for, units for Common Shares of partnership interest in the Operating Partnership (“OP Units”) Company or capital stock or other ownership interests in the Operating Partnership equity interest of any of its Subsidiaries are outstanding.
(s) . Except as described in the Registration Statement 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, all of the issued shares of capital stock or other equity interest of or ownership interests in the Company are outstanding.
(t) The Placement Shares to be sold by each Subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to have a Material Adverse Change.
(m) The Shares to be issued and sold by the Company through the Agent and the Alternative Agents hereunder and under the Other Sales Agreements have been duly authorized and, when issued upon payment and delivered against payment therefore delivery in accordance with this Agreement and the terms of this AgreementOther Sales Agreements, will be validly issued, fully paid and non-assessable, will conform to the description thereof contained in the Prospectus, will be issued in compliance with federal and the issuance state securities laws and will be free of such Placement Shares will not be subject to or in violation statutory and contractual preemptive rights, rights of any preemptive or first refusal and similar rights. Upon payment .
(n) The Company is the sole general partner of the purchase price and issuance and delivery Operating Partnership. Additionally, the Company will contribute the Net Proceeds from the sale of the Placement Shares to be issued and sold by the Company Operating Partnership in accordance herewith, exchange for a number of units of partnership interest in the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof Operating Partnership (the “CharterOP Units”), and Bylaws, as amended, ) equal to the number of the Company and the requirements of the NYSEPlacement Shares.
(uo) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock OP Units have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementarypayment and delivery, will be validly issued, fully paid and nonassessable, will conform to the description thereof contained in the Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of first refusal and similar rights.
(p) With respect to the share awards, long-term incentive plan units (“LTIP Units”) issued by the Operating Partnership and other equity-based awards (the “Equity Incentive Awards”) granted pursuant to the Company’s equity incentive plan (the “Equity Incentive Plan”), (i) each Equity Incentive Award intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) so qualifies, (ii) each grant of an Equity Incentive Award was duly authorized no later than the date on which the grant of such Equity Incentive Award was by its terms to be effective (the “Grant Date”) by all necessary trust action, including, as applicable, approval by the Board of Trustees of the Company (or a duly constituted and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Equity Incentive Plan, the Exchange Act and all other applicable laws, including the rules of the Exchange, and (iv) each such grant was properly accounted for in accordance with GAAP (as defined in Section 20(b)) in the financial statements (including the related notes) of the Company and disclosed in the Company’s filings with the Commission in accordance with the Securities Act and the Exchange Act. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Equity Incentive Awards prior to, or otherwise coordinated the grant of Equity Incentive Awards simultaneously with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their results of operations or prospects.
(q) Sufficient Common Shares have been reserved for issuance of such shares Equity Incentive Awards under the Company’s Equity Incentive Plan.
(r) Except for the Common Shares reserved for issuance in connection with the Company’s Equity Incentive Plan described in the Prospectus, no Common Shares are reserved for any purpose.
(s) Each of Common Stock the Company and the Operating Partnership has all requisite power and authority to execute, deliver and perform their respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company and the Operating Partnership.
(t) The agreement of limited partnership of the Operating Partnership (the “Operating Partnership Agreement”) has been duly and validly authorized, executed and delivered by the Company, in its capacity as sole general partner of the Operating Partnership, and constitutes a valid and binding agreement of limited partnership, enforceable in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) any implied covenant of good faith and fair dealing. The Operating Partnership Agreement conforms in all material respects to the description thereof contained in the Prospectus.
(u) The execution, delivery and performance of this Agreement by the Company and the Operating Partnership, the consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Placement Shares as described under “Use of Proceeds” in the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject; (ii) result in any violation of the provisions of the declaration of trust or bylaws (or similar organizational documents) of the Company or any of its Subsidiaries; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, except, in the case of clauses (i) and (iii), as would not, individually or in the aggregate, be subject toreasonably expected to have a Material Adverse Change.
(v) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets is required for the execution, delivery and performance of this Agreement by the Company and the Operating Partnership, the consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Placement Shares as described under “Use of Proceeds” in the Prospectus, except for the registration of the Shares under the Securities Act, such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the sale of the Shares through the Agent and the Alternative Agents and as would not reasonably be expected to have a Material Adverse Change.
(w) Except as disclosed in 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 Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securiti
Appears in 7 contracts
Sources: Sales Agreement (Chatham Lodging Trust), Sales Agreement (Chatham Lodging Trust), Sales Agreement (Chatham Lodging Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, severally represent and warrant to, and agree with the Manager that:
(a) The Company met the requirements for use of Form S-3 under the Act at the time it filed with the Commission an “automatic shelf registration statement” (as defined in Rule 405) on Form S-3 (File No. 333-236637), including a related Basic Prospectus, for registration under the Act of the offering and sale of certain securities, including the Shares. Each of the Registration Statement and any amendment thereto has become effective under the Act upon filing. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Act, no order preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any free writing prospectus has been issued and no proceedings for any of the foregoing purposes have been instituted or are pending or, to the Agent Company’s knowledge, are threatened. The Company has complied with each request (if any) from the Commission for additional or supplemental information. Each Incorporated Document, at the time it was or hereafter is filed with the Commission, or became effective under the Exchange Act, as the case may be, complied and will comply (as applicable) in all material respects with the requirements of the Exchange Act. To the extent that the Registration Statement is not available for the sales of the Shares as contemplated by this Agreement or the Company is not a “well-known seasoned issuer” as defined in Rule 405 or otherwise is unable to make the representations set forth in Section 2(d) at any time when such representations are required, the Company shall file a new registration statement with respect to any additional Shares necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After the effectiveness of any such registration statement, all references to “Registration Statement” included in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 12 of Form S-3, and all references to “Basic Prospectus” included in this Agreement shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in any such registration statement at the time such registration statement became effective.
(b) Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the Act. The Prospectus and any amendments or supplements thereto complied or will comply with the requirements of the Act in all material respects at the time the Prospectus and any amendments or supplements thereto were or will be filed with the Commission, complies with the requirements of the Act in all material respects as of the date hereof (if filed with the Commission on or prior to the date hereof, as ) and will comply with the requirements of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and the Act in all material respects as of the time of each sale of any Placement Shares pursuant to this Agreement:Agreement (each, a “Time of Sale”) and at each Settlement Date.
(ac) No order preventing or suspending Neither the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of Registration Statement nor any amendment thereto, at its effective time or supplement and on any at each Settlement Date, did notcontained, does not and contains or will not contain any an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the time of each Time of Sale and at each Settlement Date, none of (A) the General Disclosure Package and (B) any Permitted Free Writing Prospectus, when considered together with the General Disclosure Package, 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; provided. Neither the Prospectus nor any amendment or supplement thereto, howeveras of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b) or at each Settlement Date, 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. Each Incorporated Document, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company and by the Operating Partnership make no representation and warranty with respect to Manager or any Agent Information (as defined in Section 9(a) hereof)Alternative Manager expressly for use therein.
(A) At the original effectiveness of respective times the Registration StatementStatement or any amendments thereto were filed with the Commission, (B) at the time of the most recent amendment thereto to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the any time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act)) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of at the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) . The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) 405 and the Securities Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such an “automatic shelf registration statement. .” The Registration Statement became effective upon filing with Company has not received from the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and Commission any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents notice pursuant to Rule 430B(f)(2401(g)(2) and at each Settlement Date, complied and will comply in all material respects with objecting to the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as use of the date of the Prospectus and any amendment or supplement thereto, will not contain any untrue automatic shelf registration 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Actform.
(de) Other than the Registration Statement and the Prospectus, the Company No issuer free writing prospectus (including its agents and representatives, other than the Agents as defined in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) Rule 433 of the Securities Act or Rule 134 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including Prospectus and any document incorporated by reference therein preliminary prospectus or other prospectus deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectusmodified.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement Statement, the General Disclosure Package and the Prospectus under the captions “Description of Common and Preferred Offered Stock,” “Description of Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization Description of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange Partnership Agreement of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the City Office REIT Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toPartnership,
Appears in 7 contracts
Sources: Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as Each of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation jointly and warranty severally represents and warrants to each of the Underwriters as follows:
(a) An automatic shelf registration statement on Form S-3 (File No. 333-230396) with respect to any Agent Information (as defined the Shares has been prepared by the Company in Section 9(a) hereof).
(A) At conformity with the original effectiveness requirements of the Registration StatementSecurities Act of 1933, as amended (B) at the time of “Act”), and the most recent amendment thereto for rules and regulations (the purposes of complying with Section 10(a)(3“Rules and Regulations”) of the Securities Act and Exchange Commission (whether the “Commission”) thereunder, has been filed with the Commission and became effective upon filing. The Company and the transactions contemplated by this equity underwriting agreement (this “Agreement”) meet the requirements and comply with the conditions for the use of Form S-3, including the transaction requirements set forth in General Instruction I.B.1 of such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of form. Such registration statement meets the Exchange 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, requirements of Rule 163(c415(a)(1)(x) under the Securities ActAct and complies in all material respects with said rule. Copies of such registration statement, including any amendments thereto, the base prospectus (meeting the requirements of the Rules and Regulations) made contained therein (the “Base Prospectus”) and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been delivered by the Company to you. Such registration statement, together with any offer relating registration statement filed by the Company pursuant to the Securities in reliance on the exemption of Rule 163 462(b) under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405462(b) Registration Statement”)).
(c) The , is herein referred to as the “Registration Statement is an “automatic shelf registration statement” (as defined Statement”, which shall be deemed to include all information omitted therefrom in Rule 405) reliance upon Rules 430A, 430B or 430C under the Act and contained in the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the CommissionProspectus referred to below. No order suspending the effectiveness of post-effective amendment to the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and filed as of the date of this Agreement. “Prospectus” means the Base Prospectus together with the final prospectus supplement filed with the Commission pursuant to and within the time limits described in Rule 424(b) under the Act. Any preliminary prospectus relating to the Shares, including any preliminary prospectus supplement relating to the Shares filed with the Commission, together with the Base Prospectus is herein referred to as a “Preliminary Prospectus”. Any reference herein to the Registration Statement, any Rule 462(b) Registration Statement, the Base Prospectus, any Preliminary Prospectus or to the Prospectus and or to any amendment or supplement thereto, will not contain to 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 foregoing documents shall be deemed to refer to and include the filing of any document under which they were madethe Securities Exchange Act of 1934, not misleading; providedas amended, however, that the Company and the Operating Partnership make no representation rules and warranty with respect to any Agent Information. The documents incorporatedregulations promulgated thereunder (the “Exchange Act”), which is or is deemed to be incorporated, incorporated by reference in the Registration Statement and Statement, the ProspectusRule 462(b) Registration Statement, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Base Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Preliminary Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described and, in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence case of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being reference herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of also shall be deemed to include any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference intherein, and any supplements or amendments thereto, filed with the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, Commission after the requirements date of filing of the Articles of Amendment and Restatement, as amended or supplemented through final prospectus supplement under Rule 424(b) under the date hereof (the “Charter”)Act, and Bylaws, as amended, prior to the termination of the Company and the requirements offering of the NYSEShares by the Underwriters.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 5 contracts
Sources: Equity Underwriting Agreement (Invitation Homes Inc.), Equity Underwriting Agreement (Invitation Homes Inc.), Equity Underwriting Agreement (Invitation Homes Inc.)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that Representatives, as of the date hereof, and to the Representatives and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q“Representation Date”), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) Pursuant to the 1933 Act and the 1933 Act Regulations, the Registration Statement automatically became effective upon the filing thereof with the Commission; no stop order suspending the effectiveness of the Registration Statement has been received by the Company, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. The Registration Statement is an “automatic effective registration statement” as defined under Rule 405 of the 1933 Act that has been filed with the Commission not earlier than three years prior to the date hereof; 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) under the 1933 Act has been received by the Company or the Operating Partnership. No stop order preventing or suspending the use of the Time of Sale Prospectus or the Prospectus has been issued received by the CommissionCompany, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the 1933 Act, the Company or the Operating Partnership, as applicable, is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the ProspectusCompany or the Operating Partnership, as of its date and as applicable, has not received notice that the Commission objects to the use of the date Registration Statement as an automatic shelf registration statement. For purposes of this Agreement, all references to the Registration Statement or the Prospectus or any amendment or supplement thereto shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and on Retrieval system (or any Settlement Datesuccessor system).
(ii) The Registration Statement at the time the Registration Statement became effective, complied, and as of each Representation Date will comply, in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at its most recent effective date under the 1933 Act, did not, does and as of each Representation Date, 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. The Time of Sale Prospectus, at the time of each sale of the applicable Underwritten Securities (the “Applicable Time”), the Closing Time and the Date of Delivery, if any, as then amended or supplemented by the Company, if applicable, will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date Closing Time and Date of the Prospectus and any amendment or supplement theretoDelivery, if any, will not contain any 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; provided. Notwithstanding the foregoing, however, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(iii) Each preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and warranty any Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 433 (to the extent prepared by the Company) under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iv) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the ProspectusProspectus pursuant to Item 12 of Form S-3ASR under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(h), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(v) Each of the Company and the Operating Partnership is not an “ineligible issuer” in connection with the offering of the applicable Underwritten Securities pursuant to Rules 164, however405 and 433 under the 1933 Act. Any free writing prospectus that the Company or the Operating Partnership is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company and the Operating Partnership make no representation has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company and warranty the Operating Partnership complies or will comply in all material respects with respect the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I to the applicable Terms Agreement, and electronic road shows each furnished to you before first use, if any, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Agent Informationfree writing prospectus.
(evi) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) The Company was not an “ineligible issuer” financial statements included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement, Time of Sale Prospectus and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information required to be stated therein. The financial information and data included in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(as defined in Rule 405viii) Since the respective dates as of which information is given in the eligibility determination date for purposes Registration Statement, the Time of Rules 164 Sale Prospectus and 433 under the Securities Act with respect to Prospectus (in the offering case of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”as updated by information incorporated by reference therein), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as otherwise stated therein, (A) there has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described no material adverse change in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationcondition, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), or in the earnings, properties, management, results of operations assets or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined) as a whole, in the condition, financial or otherwise, or in the earnings, assets or business prospects of any of the real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no casualty loss, condemnation or other adverse event with respect to any Property has occurred, which is material to the Duke Group taken as a whole; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (iiF) prevent there has been no material change in the short-term debt or materially interfere with consummation long-term debt of the transactions contemplated hereby Duke Group as a whole; (G) except for quarterly dividends on the occurrence Common Stock, dividends on the Preferred Stock, and any dividend necessary to maintain REIT status, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with director and employee equity compensation plans, interference employee stock purchase plans, other employee benefit plans, the Duke Realty 401(k) Plan, direct stock purchase and dividend reinvestment plans, and the Company’s at the market equity program, the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(ix) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Time of Sale Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation, partnership or limited liability company under the laws of its jurisdiction of organization, with corporate, partnership and limited liability company power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Time of Sale Prospectus.
(iixi) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership, corporation or limited liability company in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxii) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Time of Sale Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws in all material respects (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxiii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Time of Sale Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws laws).
(xiv) All of the issued and were not outstanding shares of capital stock or other equity interests of each subsidiary have been validly issued in violation of any preemptive or similar rights. Except and fully paid and, except as disclosed set forth in the Registration Statement and the ProspectusStatement, the Company indirectly or the Operating Partnership, as the case may be, owns, directly or indirectly, owns all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest or other equity interests of each Subsidiary are owned by of its subsidiaries other than the Company or Property Partnerships, Duke Realty Services Limited Partnership (the Operating “Services Partnership”), Duke Realty Services Limited Liability Company, Duke Construction Limited Partnership directly or indirectly(the “Construction Partnership”) and certain joint ventures, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or other defects of any kind (collectively, “Liens”)equity. Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toNeither the
Appears in 5 contracts
Sources: Terms Agreement (DUKE REALTY LTD PARTNERSHIP/), Terms Agreement (DUKE REALTY LTD PARTNERSHIP/), Terms Agreement (DUKE REALTY LTD PARTNERSHIP/)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that Representatives, as of the date hereof, and to the Representatives and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q“Representation Date”), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) Pursuant to the 1933 Act and the 1933 Act Regulations, the Registration Statement automatically became effective upon the filing thereof with the Commission; no stop order suspending the effectiveness of the Registration Statement has been received by the Company, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. The Registration Statement is an “automatic effective registration statement” as defined under Rule 405 of the 1933 Act that has been filed with the Commission not earlier than three years prior to the date hereof; 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) under the 1933 Act has been received by the Company or the Operating Partnership. No stop order preventing or suspending the use of the Time of Sale Prospectus or the Prospectus has been issued received by the CommissionCompany, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the 1933 Act, the Company or the Operating Partnership, as applicable, is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the ProspectusCompany or the Operating Partnership, as applicable, has not received notice that the Commission objects to the use of its date the Registration Statement as an automatic shelf registration statement.
(ii) The Registration Statement at the time the Registration Statement became effective, complied, and as of each Representation Date will comply, in all material respects with the date requirements of any amendment or supplement the 1933 Act, the 1933 Act Regulations and on any Settlement Datethe 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not, does and as of each Representation Date, 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. The Time of Sale Prospectus, at the time of each sale of the applicable Underwritten Securities (the “Applicable Time”), the Closing Time and the Date of Delivery, if any, as then amended or supplemented by the Company, if applicable, will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date Closing Time and Date of the Prospectus and any amendment or supplement theretoDelivery, if any, will not contain any 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; provided. Notwithstanding the foregoing, however, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(iii) Each preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and warranty any Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 433 (to the extent prepared by the Company) under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iv) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(h), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(v) Each of the Company and the Operating Partnership is not an “ineligible issuer” in connection with the offering of the applicable Underwritten Securities pursuant to Rules 164, however405 and 433 under the 1933 Act. Any free writing prospectus that the Company or the Operating Partnership is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company and the Operating Partnership make no representation has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company and warranty the Operating Partnership complies or will comply in all material respects with respect the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I to the applicable Terms Agreement, and electronic road shows each furnished to you before first use, if any, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Agent Informationfree writing prospectus.
(evi) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) The Company was not an financial statements included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement, Time of Sale Prospectus and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “ineligible issuerRatios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(as defined in Rule 405viii) Since the respective dates as of which information is given in the eligibility determination date for purposes Registration Statement, the Time of Rules 164 Sale Prospectus and 433 under the Securities Act with respect to Prospectus (in the offering case of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”as updated by information incorporated by reference therein), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as otherwise stated therein, (A) there has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described no material adverse change in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationcondition, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), or in the earnings, properties, management, results of operations assets or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined) as a whole, in the condition, financial or otherwise, or in the earnings, assets or business prospects of any of the real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no casualty loss, condemnation or other adverse event with respect to any Property has occurred, which is material to the Duke Group taken as a whole; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (iiF) prevent there has been no material change in the short-term debt or materially interfere with consummation long-term debt of the transactions contemplated hereby Duke Group as a whole; (G) except for quarterly dividends on the occurrence Common Stock and dividends on the Preferred Stock, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, interference the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(ix) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Time of Sale Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Time of Sale Prospectus.
(iixi) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxii) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Time of Sale Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxiii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Time of Sale Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiv) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or other defects of any kind (collectively, “Liens”)equity. Schedule 3 hereto specifically identifies all subsidiaries of Neither the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in nor the Operating Partnership (“OP Units”) owns any direct or indirect equity interest in any entity other ownership than the subsidiaries and the Property Partnerships, except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise. The Company is the sole general partner and a 1% owner of the Services Partnership, and the Operating Partnership are outstanding.
(s) Except as described in is the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized sole limited partner and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 4 contracts
Sources: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/), Underwriting Agreement (Duke Realty Limited Partnership/)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that Representatives, as of the date hereof, and to the Representatives and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q“Representation Date”), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) Pursuant to the 1933 Act and the 1933 Act Regulations, the Registration Statement automatically became effective upon the filing thereof with the Commission; no stop order suspending the effectiveness of the Registration Statement has been received by the Company, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. The Registration Statement is an “automatic effective registration statement” as defined under Rule 405 of the 1933 Act that has been filed with the Commission not earlier than three years prior to the date hereof; 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) under the 1933 Act has been received by the Company or the Operating Partnership. No stop order preventing or suspending the use of the Time of Sale Prospectus or the Prospectus has been issued received by the CommissionCompany, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the 1933 Act, the Company or the Operating Partnership, as applicable, is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the ProspectusCompany or the Operating Partnership, as applicable, has not received notice that the Commission objects to the use of its date the Registration Statement as an automatic shelf registration statement.
(ii) The Registration Statement at the time the Registration Statement became effective, complied, and as of each Representation Date will comply, in all material respects with the date requirements of any amendment or supplement the 1933 Act, the 1933 Act Regulations and on any Settlement Datethe 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not, does and as of each Representation Date, 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. The Time of Sale Prospectus, at the time of each sale of the applicable Underwritten Securities (the “Applicable Time”), the Closing Time and the Date of Delivery, if any, as then amended or supplemented by the Company, if applicable, will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date Closing Time and Date of the Prospectus and any amendment or supplement theretoDelivery, if any, will not contain any 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; provided. Notwithstanding the foregoing, however, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(iii) Each preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and warranty any Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 433 (to the extent prepared by the Company) under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iv) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(h), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(v) Each of the Company and the Operating Partnership is not an “ineligible issuer” in connection with the offering of the applicable Underwritten Securities pursuant to Rules 164, however405 and 433 under the 1933 Act. Any free writing prospectus that the Company or the Operating Partnership is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company and the Operating Partnership make no representation has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company and warranty the Operating Partnership complies or will comply in all material respects with respect the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I to the applicable Terms Agreement, and electronic road shows each furnished to you before first use, if any, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Agent Informationfree writing prospectus.
(evi) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) The Company was not an financial statements included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement, Time of Sale Prospectus and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “ineligible issuerRatios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(as defined in Rule 405viii) Since the respective dates as of which information is given in the eligibility determination date for purposes Registration Statement, the Time of Rules 164 Sale Prospectus and 433 under the Securities Act with respect to Prospectus (in the offering case of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”as updated by information incorporated by reference therein), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as otherwise stated therein, (A) there has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described no material adverse change in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationcondition, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), or in the earnings, properties, management, results of operations assets or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined) as a whole, in the condition, financial or otherwise, or in the earnings, assets or business prospects of any of the real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no casualty loss, condemnation or other adverse event with respect to any Property has occurred, which is material to the Duke Group taken as a whole; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (iiF) prevent there has been no material change in the short-term debt or materially interfere with consummation long-term debt of the transactions contemplated hereby Duke Group as a whole; (G) except for quarterly dividends on the occurrence Common Stock and dividends on the Preferred Stock, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with director and employee equity compensation plans, interference the Duke Realty 401(k) Plan and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(ix) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Time of Sale Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Time of Sale Prospectus.
(iixi) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxii) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Time of Sale Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws in all material respects (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxiii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Time of Sale Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiv) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or other defects of any kind (collectively, “Liens”)equity. Schedule 3 hereto specifically identifies all subsidiaries of Neither the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in nor the Operating Partnership (“OP Units”) owns any direct or indirect equity interest in any entity other ownership than the subsidiaries and the Property Partnerships, except for such interests as, in the Operating Partnership aggregate, are outstanding.
(s) Except as described in not material to the Registration Statement and the Prospectuscondition, no options, warrants financial or other rights to purchase, agreements or other obligations to issueotherwise, or rights to convert any obligations into the earnings, assets, business affairs or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment business prospects of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all LiensDuke Group considered as a single enterprise. The certificates, if any, to be used to evidence Company is the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement sole general partner and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toa 1% owner o
Appears in 3 contracts
Sources: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)to, and as of agree with, the time of each sale of any Placement Shares pursuant to this AgreementUnderwriter that:
(a) No order preventing or suspending A registration statement (No. 333-108785) relating to the use of Offered Securities being sold by the Prospectus Company, including a base prospectus, has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty filed with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act and Exchange Commission (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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“Commission”) under the Securities Act of 1933, as amended (“Act”) made any offer relating to and such registration statement (“registration statement”) has been declared effective. For purposes of this Agreement, “Effective Time” means the Securities in reliance on the exemption of Rule 163 under the Securities Act, date and (D) time as of which the date hereof, the Company registration statement was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became declared effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date “Effective Date” with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue registration statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of means the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent InformationEffective Time thereof. The documents incorporatedregistration statement, or to be incorporatedas amended at its Effective Time, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in pursuant to the light General Instructions of the circumstances under Form on which they were made, not misleading; provided, however, that it is filed and including all information (if any) deemed to be a part of the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) registration statement as of the eligibility determination date for purposes of Rules 164 and 433 its Effective Time pursuant to Rule 430A(b) (“Rule 430A(b)”) under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporatedAct, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse EffectRegistration Statement.” Any Registration Statement filed by the Company pursuant to Rule 462(b) of the Act is hereinafter called the “Rule 462(b) Registration Statement” and from and after the date and time of filing the Rule 462(b) Registration Statement, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The base prospectus, together with the final prospectus supplement setting forth the final terms of the offering, sale and plan of distribution of the Offered Securities, as filed with the Commission pursuant to and in accordance with Rule 424(b) (“Rule 424(b)”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power Act and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described included in the Registration Statement and the Prospectus and is duly qualified Statement, including all material incorporated by reference in such prospectus, are hereinafter referred to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) Prospectus.” No document has been duly organized, is validly existing as a corporation, limited partnership or limited liability company will be prepared or distributed in good standing reliance on Rule 434 under the laws Act. The Company meets the requirements for the use of Form S-3 under the jurisdiction of its organization, has the full power Act and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement meets the requirements of, and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform complies in all material respects to the description thereof contained in the Registration Statement and the Prospectus with, Rule 415(a)(1)(x) under the caption “Description of Common and Preferred StockAct.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 3 contracts
Sources: Underwriting Agreement (Corporate Office Properties Trust), Underwriting Agreement (Corporate Office Properties Trust), Underwriting Agreement (Corporate Office Properties Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, severally represent and warrant to, and agree with the Manager that:
(a) The Company met the requirements for use of Form S-3 under the Act at the time the Registration Statement was filed. Each of the Registration Statement and any amendment thereto has become effective under the Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Act, no order preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any free writing prospectus has been issued and no proceedings for any of the foregoing purposes have been instituted or are pending or, to the Agent that Company’s knowledge, are threatened. The Company has complied with each request (if any) from the Commission for additional or supplemental information. Each Incorporated Document, at the time it was or hereafter is filed with the Commission, or became effective under the Exchange Act, as the case may be, complied and will comply (as applicable) in all material respects with the requirements of the Exchange Act.
(b) Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the Act. The Prospectus and any amendments or supplements thereto complied or will comply with the requirements of the Act in all material respects at the time the Prospectus and any amendments or supplements thereto were or will be filed with the Commission, complies with the requirements of the Act in all material respects as of the date hereof (if filed with the Commission on or prior to the date hereof, as ) and will comply with the requirements of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and the Act in all material respects as of the time of each sale of any Placement Shares pursuant to this Agreement:Agreement (each, a “Time of Sale”) and at each Settlement Date.
(ac) No order preventing or suspending Neither the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of Registration Statement nor any amendment thereto, at its effective time or supplement and on any at each Settlement Date, did notcontained, does not and contains or will not contain any an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the time of each Time of Sale and at each Settlement Date, none of (A) the General Disclosure Package and (B) any Permitted Free Writing Prospectus, when considered together with the General Disclosure Package, 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; provided, however, . Neither the Company and the Operating Partnership make no representation and warranty with respect to Prospectus nor any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment supplement thereto, as of its applicable effective date and issue date, at each deemed effective date the time of any filing with respect to Agents the Commission pursuant to Rule 430B(f)(2424(b) and or at each Settlement Date, complied and included, includes or will comply in all material respects with the Securities Act, and did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein omitted, omits or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the ProspectusEach Incorporated Document, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, complied as the case may be, when read together with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not and will complynot include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in all respects reliance upon and in conformity with written information furnished to the requirements of Company by the Exchange ActManager or any Alternative Manager expressly for use therein.
(d) Other than the Registration Statement and the Prospectus, the Company No issuer free writing prospectus (including its agents and representatives, other than the Agents as defined in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) Rule 433 of the Securities Act or Rule 134 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including Prospectus and any document incorporated by reference therein preliminary prospectus or other prospectus deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(e) The statements in the Registration Statement, the General Disclosure Package and the Prospectus under the captions “Description of Offered Stock,” “Description of Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Description of the Partnership Agreement of City Office REIT Operating Partnership, L.P.,” “Material Federal Income Tax Considerations” and “Plan of Distribution,” and in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016 under the caption “Item 13. Certain Relationships and Related Transactions, and Director Independence,” insofar as such statements summarize legal matters, agreements, documents or legal or governmental proceedings discussed therein, are accurate, complete and fair summaries of such legal matters, agreements, documents or legal or governmental proceedings. There are no contracts, agreements or other documents, instruments or transactions of any character required to be described or referred to in the Registration Statement, the Prospectus or the Permitted Free Writing Prospectus or to be filed as exhibits to the Registration Statement that have not been so described, referred to or filed, as required.
(f) Prior to the execution of this Agreement, the Company was has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the registration statement relating to the offer of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act in all material respects; the Company has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 under the Act, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping; and the Company is not an “ineligible issuer” (as defined in Rule 405405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the ProspectusStatement.
(fg) The Placement Shares have been authorized for listing From the time of the initial submission of the Registration Statement (or, if earlier, the first date on the NYSE, subject to official notice of issuance and which the Company engaged directly or through any person authorized to act on its behalf in any oral or written communication with potential investors undertaken in reliance on Section 5(d) of Act) through the date hereof, the Company has been and is an “emerging growth company,” as defined in material compliance with the rules Section 2(a) of the NYSE, including, without limitationAct (an “Emerging Growth Company”). Pursuant to Section 107(b)(3) of the Jumpstart Our Business Startups Act, the requirements for continued listing Company has opted out of the Common Stock, extended transition period provided in Section 7(a)(2)(B) of the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share Act for complying with new or revised accounting standards.
(the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there h) There are no actions, suits material legal or governmental proceedings pending or, to the knowledge of the Company and or the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of to which the Company, there the Operating Partnership or any of the Subsidiaries is a party, or to which any of their respective properties or assets are no contracts or documents of a character which subject, that are required to be filed as exhibits to described in the Registration Statement other than those Statement, the General Disclosure Package or the Prospectus that are not so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingdescribed.
(i) The Company has been is a corporation duly incorporatedorganized, is validly existing as a corporation and in good standing under the laws of the State of Maryland, and has the all necessary corporate power and authority authority, to own or lease and lease, as the case may be, operate its property properties and to operate its property and conduct its current business as described in the Registration Statement Statement, the General Disclosure Package and the Prospectus Prospectus, and to execute, deliver and perform its obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing as a foreign corporation in each other jurisdiction in which such qualification is required, whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except where the failures so to the extent that the failure to be so qualified qualify or be in good standing would not could not, (iA) individually, or in the aggregate, have a material adverse effect on the assetscondition, business, condition (financial or otherwise), or on the earnings, properties, managementassets, results of operations business affairs or business prospects (collectively, the “Business Conditions”) of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, whole of the Company or (iiB) prevent or materially interfere with the consummation of the transactions transaction contemplated hereby (the occurrence of any such effect, prevention, interference effect or result any such prevention described in the foregoing clauses (iA) or and (iiB) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been is duly organized, is validly existing as a limited partnership and in good standing under the laws of the State of Delaware Maryland, and has all necessary limited partnership power and authority, to own or lease and operate its properties and to conduct its current business as described in the Registration Statement, the General Disclosure Package and the Prospectus, and to execute, deliver and perform its obligations under this Agreement. The Operating Partnership is duly qualified as a foreign limited partnership to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or be in good standing could not result in a Material Adverse Effect.
(k) Each Subsidiary 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 set forth opposite its name on Schedule D annexed hereto; the Subsidiaries listed on Schedule D comprise all of the subsidiaries of the Company; each Subsidiary has the full power and authority to own or lease, as the case may be, its property properties and to operate its property properties and conduct its business as described in the Registration Statement and Statement, the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property its properties requires such qualification, except to the extent that the failure to be so qualified or be in good standing would could not have a Material Adverse Effect. All ; all of the issued shares of capital stock, units of limited partnership interest and units of membership interest interest, as the case may be, of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, are, with respect to shares of capital stock, fully paid and non-assessable, have been issued in compliance with all applicable securities laws and were not issued in violation of any preemptive or similar rights. Except , except as disclosed would not reasonably be expected to have a Material Adverse Effect; except as described in the Registration Statement Statement, the General Disclosure Package and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of owns the issued and outstanding shares of capital stock, units of limited partnership interest and units or percentage of membership interest interests of each Subsidiary are the Subsidiaries as described in the Registration Statement, the General Disclosure Package and the Prospectus as being owned by the Company or the Operating Partnership directly or indirectlyPartnership, as the case may be, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power , except as would not reasonably be expected to have a Material Adverse Effect and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or other rights to convert any obligations into shares of capital stock or exchange any ownership interests in each of the Subsidiaries or securities forconvertible into or exchangeable for capital stock of, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in any of the Operating Partnership Subsidiaries are outstanding, except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus.
(sl) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have This Agreement has been duly authorized and, when issued executed and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, each of the Company and the requirements Operating Partnership. The Articles Supplementary to the Company’s charter setting forth the terms of the NYSESeries A Preferred Shares (the “Articles Supplementary”) will be, prior to the first Settlement Date, duly authorized, executed and filed by the Company with the State Department of Assessments and Taxation of the State of Maryland (the “SDAT”). The Third Amendment to the Amended and Restated Agreement of the Operating Partnership, as amended, setting forth the terms of the Series A Preferred Units (the “Operating Partnership Agreement Amendment”) will be, prior to the first Settlement Date, duly authorized, executed and delivered. The Operating Partnership Agreement Amendment will, prior to the first Settlement Date, constitute a legally valid and binding agreement of the Operating Partnership enforceable against the Operating Partnership 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 or affecting creditors’ rights and general principles of equity and except as rights to indemnity and contribution thereunder may be limited by applicable law or policies underlying such law.
(um) The execution, delivery and performance of this Agreement and the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares and the use of proceeds from the sale of the Shares as described therein under the caption “Use of Proceeds” and any issuance of the shares of the Common Stock initially issuable upon conversion of the Series D A Preferred Stock Shares) have been duly authorized by all necessary corporate or other action and, when issued upon conversion do not and will not, with or without the giving of notice or the lapse of time, or both, (i) conflict with or constitute a breach of any term or provision of the Series D Preferred Stock Company’s, Operating Partnership’s or the Subsidiaries’ respective charter, certificate of limited partnership, bylaws, limited partnership agreement or similar governing documents; (ii) result in accordance with a breach of, constitute a default under, result in the terms termination or modification of, result in the creation or imposition of any Lien, security interest, charge or encumbrance upon any of the Articles Supplementaryproperties of the Company, will be validly issuedthe Operating Partnership or the Subsidiaries or, fully paid and nonassessableexcept as contemplated by this Agreement, and require any payment by the issuance Company, the Operating Partnership or any of such shares the Subsidiaries or impose any liability on the Company, the Operating Partnership or any of Common Stock will not be subject the Subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust, commitment or other agreement or instrument to which the Company, the Operating Partnership or any of the Subsidiaries is a party or by which any of their respective properties are bound or affected other than this Agreement; (iii) violate any law, rule, regulation, judgment, order or decree of any government or governmental agency, instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or the Subsidiaries or any of their respective properties or businesses; or (iv) resu
Appears in 3 contracts
Sources: Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Agent that as of Closing Date and the date hereofAdditional Closing Date, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)the case may be, and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have has been and remain eligible for registration declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany, threatened by the Commission. The .
(b) At the time of initial filing of the Registration Statement, as at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Series A Preferred Stock, on the date hereofhereof and on the Closing Date or the Additional Closing Date, the Company was not, is not and will not be an “ineligible issuer” (as defined in Rule 405 under the Securities Act).
(c) The Registration Statement and the Prospectus conformed, and any post-effective amendment thereto, as of its applicable effective to the Registration Statement filed after the date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and hereof will comply conform in all material respects with on the date hereof and on the Closing Date or the Additional Closing Date, as applicable, to the requirements of the Securities Act. The Preliminary Prospectus conformed, and the Prospectus to be filed with the Commission pursuant to Rule 424(b) under the Securities Act will conform in all material respects to the requirements of the Securities Act.
(d) The Registration Statement did not and will not as of its effective date contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(e) The Prospectus will not, as of its date and on the date of Closing Date or the Prospectus and any amendment or supplement theretoAdditional Closing Date, will not contain any 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; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to Representative by or on behalf of any Agent Information. The documents incorporatedUnderwriter specifically for inclusion therein, or to be incorporated, by reference which information is specified in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange ActSection 15 hereof.
(df) Other than the Registration Statement and the ProspectusThe Time of Sale Information does not, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepareat the Time of Sale, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to Representative by or on behalf of any Agent InformationUnderwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(eg) The Company was not an Each Issuer Free Writing Prospectus (including, without limitation, any “ineligible issuerroad show” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act Act) that is a free writing prospectus under Rule 433 under the Securities Act), when considered together with respect the Time of Sale Information at the Time of Sale, did not contain an untrue statement of a material fact or omit to state a material fact or necessary to make the offering statements therein, in light of the Placement Shares contemplated by the Registration Statement and the Prospectuscircumstances under which they were made, not misleading.
(fh) The Placement Shares have been authorized for listing Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Shares that would constitute an Issuer Free Writing Prospectus without the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge prior written consent of the Company, there are no contracts or documents of a character which are Representative. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those Securities Act. The Company has taken all actions necessary so that are so filed.
(h) To any road show in connection with the knowledge offering of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed Shares will not be required to be filed pursuant to the Representatives in writingSecurities Act.
(i) The capitalization of the Company has as of June 30, 2021 is as set forth in the Registration Statement, the Time of Sale Information and the Prospectus. All the outstanding shares of capital stock of the Company have been, and as of the Closing Date and the Additional Closing Date, as the case may be, will be, duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus; except as described in the Time of Sale Information and the Prospectus, the Company is not a party to or bound by any outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such capital stock; the Shares to be issued and sold to the Underwriters by the Company hereunder have been duly incorporatedauthorized and, when issued and delivered to the Underwriters against full payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; the capital stock of the Company conforms to the description thereof in the Registration Statement, the Time of Sale Information and the Prospectus (or any amendment or supplement thereto).
(j) Each of the Company, the Operating Partnership and each of the Company’s subsidiaries (i) is duly formed or organized and validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties and to operate its property and conduct its business as presently conducted and as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) and (ii) is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to be so qualified or be duly formed, organized, validly existing and in good standing or to have such power and authority or to so register or qualify would not (i) not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the assetscondition, business, condition (financial or otherwise), earnings, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, whole (financial or otherwise) (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder (including the issuance and sale of the Shares and the use of proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds” and any issuance of the shares of Class I Common Stock upon conversion of the Shares), and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) . The Articles Supplementary will be, prior to the Company’s Closing Date, duly authorized, executed and filed by the Company with the SDAT. The amendment (the “Operating Partnership Agreement Amendment”) to the Amended and Restated Articles Limited Partnership Agreement of Incorporation the Operating Partnership (as amended, the “Operating Partnership Agreement”) setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, A preferred units of limited partnership interest in the Operating Partnership (the “OP Series A Preferred Units”) or other ownership interests in will be, prior to the Closing Date, duly authorized, executed and delivered. The Operating Partnership Agreement Amendment will, prior to the Closing Date, constitute a legally valid and binding agreement of the Operating Partnership are outstandingenforceable against the Operating Partnership 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 or affecting creditors’ rights and general principles of equity and except as rights to indemnity and contribution thereunder may be limited by applicable law or policies underlying such law.
(s) Except as described in the Registration Statement 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.
(tl) The Placement Shares to be sold purchased by the Company Underwriters pursuant to this Agreement have been duly authorized for issuance, sale and delivery and, when issued and delivered by the Company pursuant to this Agreement against payment therefore in accordance with of the terms of this Agreementconsideration set forth herein, will be validly issued, fully paid and non-assessablenonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus. The issuance of such Placement Shares will not be subject to or in violation any preemptive, co-sale right, registration right, right of any preemptive first refusal or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(um) All of the issued and outstanding shares of the capital stock of the Company: (i) have been duly authorized and validly issued, are fully paid and nonassessable and (ii) have been issued in compliance with federal and state securities laws. The shares of Class I Common Stock initially issuable upon conversion of the Series D Preferred Stock Shares have been duly authorized and, if and when issued upon conversion of the Series D Preferred Stock Shares in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Class I Common Stock will not be subject toto or in violation of any preemptive or similar rights. The Board of Directors of the Company has duly and validly reserved such shares of Class I Common Stock for issuance upon conversion of the Shares.
(n) All of the issued and outstanding common units and Series A Preferred Units of the Operating Partnership (collectively, the “OP Units”) have been duly authorized for issuance by the Operating Partnership and its general partner and validly issued. The terms of the OP Units conform in all material respects to the descriptions related thereto in the Registration Statement, the Time of Sale Information and the Prospectus. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus: (i) no OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any OP Units and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other securities of the Operating Partnership. Any prior offers and sales of the OP Units described in the Registration Statement, the Time of Sale Information and the Prospectus, have been offered and sold in transactions exempt from the registration requirements of the Securities Act, the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and Blue Sky laws. None of the OP Units were issued in violation of the preemptive or other similar rights of any holder of the Operating Partnership. The Series A Preferred Units to be issued by the Operating Partnership to the Company upon contribution by the Company to the Operating Partnership of the net proceeds from the sale of the Shares have been or by the Closing Date will have been duly authorized for issuance.
(o) There are no legal or governmental proceedings pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against the Company, the Operating Partnership or their subsidiaries or to which the Company or its subsidiaries or any of their properties are subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement thereto) but are not described as required. Except as described in the Registration Statement, the Time of Sale Information and Prospectus, there are no actions, suits, inquiries, proceedings or investigations by or before any court or governmental or other regulatory or administrative agency or commission pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against or involving the Company, the Operating Partnership or their subsidiaries, which might individually or in the aggregate reasonably be expected to have a Material Adverse Effect or prevent or adversely affect the transactions contemplated by this Agreement, nor to the knowledge of the Company and the Operating Partnership, is there any basis for any such action, suit, inquiry, proceeding or investigation. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Time of Sale Information or the Prospectus (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement that are not described, filed or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus as required by the Securities Act. All such contracts to which the Company, the Operating Partnership or any of their subsidiaries is a party have been duly authorized, executed and delivered by the Company, the Operating Partnership or the applicable subsidiary, constitute valid and binding agreements of the Company, the Operating Partnership or the applicable subsidiary and are enforceable against the Company, the Operating Partnership or the applicable subsidiary in accordance with the terms thereof, except as enforceability thereof may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought. None of the Company, the Operating Partnership or the applicable subsidiary has received notice or been made aware that any other party is in breach of or default to the Company, the Operating Partnership or the applicable subsidiary under any of such contracts.
(p) None of the Company, the Operating Partnership or any of their subsidiaries is (i) in violation of (A) its articles of incorporation or bylaws, or other organizational documents, (B) any federal, state or foreign law, ordinance, administrative or governmental rule or regulation applicable to the Company, the Operating Partnership or any of their subsidiaries, or (C) any decree of any federal, state or foreign court or governmental agency or body having jurisdiction over the Company, the Operating Partnership or any of their subsidiaries, except, in the case of (B) and (C), for violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; or (ii) in default in any material respect in the performance of any obligation, agreement or condition contained in (A) any bond, debenture, note or any other evidence of indebtedness or (B) any agreement, contract, indenture, lease or other instrument (each of (A) and (B), an “Existing Instrument”) to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which any of their properties may be bound, except for such defaults which would not, indiv
Appears in 2 contracts
Sources: Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.), Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a “Representation Date”), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term “Prospectus” refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “Ratios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been no material change in the short-term debt or long-term debt of the Duke Group as a whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, interference the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(iix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(iix) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxi) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise. The Company that are “significant subsidiaries” is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and Duke Management, Inc. are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. Duke Business Centers Corporation, a wholly-owned subsidiary of Duke Realty Construction, Inc. is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is wholly owned by the Operating Partnership.
(mxiv) The Operating Partnership has Except for transactions described in the partnership power Prospectus and authority transactions in connection with dividend reinvestment plans, stock option and other employee benefit plans, a warrant exercisable for 1,444,486 shares of Common Stock to execute and deliver this Agreement and AEW Capital Management, L.P. or its affiliates, a warrant exercisable for 331,200 shares of Common Stock to perform the Codina Group or its obligations hereunder and all limited partnership action required to be taken for the due and proper authorizationaffiliates, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized Shares and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as otherwise set forth in the Registration Statement and the Prospectus (except for subsequent issuancesbelow, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units. The Company are outstandingis required to purchase Duke Management, Inc.’s interest in the Services Partnership for 833,334 Units upon a change in control of the Company or a dissolution of the Operating Partnership.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the Company pursuant to this Agreement and the applicable Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementTerms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject topurchas
Appears in 2 contracts
Sources: Underwriting Agreement (Duke Realty Limited Partnership/), Underwriting Agreement (Duke Realty Corp)
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Agent that as of the date hereofClosing Date, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have has been and remain eligible for registration declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares Notes has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany, threatened by the Commission. The .
(b) At the time of initial filing of the Registration Statement, as at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Notes, on the date hereofhereof and on the Closing Date, the Company was not, is not and will not be an “ineligible issuer” (as defined in Rule 405 under the Securities Act).
(c) The Registration Statement and the Preliminary Prospectus conformed, and any post-effective amendment thereto, as of its applicable effective to the Registration Statement filed after the date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and hereof will comply conform in all material respects with on the date hereof and on the Closing Date to the requirements of the Securities Act. The Preliminary Prospectus conformed, and the Prospectus to be filed with the Commission pursuant to Rule 424(b) under the Securities Act will conform in all material respects to the requirements of the Securities Act.
(d) The Registration Statement did not and will not as of its effective date contain any 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; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(e) The Prospectus will not, as of its date and on the Closing Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(f) Any documents incorporated by reference into the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement theretono such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) The Time of Sale Information does not, and will not at the Time of Sale, contain any 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; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to Representative by or on behalf of any Agent Information. The documents incorporatedUnderwriter specifically for inclusion therein, or to be incorporated, by reference which information is specified in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange ActSection 15 hereof.
(dh) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than including, without limitation, any “road show” (as referred to defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in that is a free writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with prospectus under Rule 433 under the Securities Act (to the extent required therebyAct), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken considered together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing ProspectusTime of Sale Information at the Time of Sale, did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(ei) The Company was not an “ineligible issuer” (as defined Each Issuer Free Writing Prospectus conformed or will conform in Rule 405) as all material respects to the requirements of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Notes that would constitute an Issuer Free Writing Prospectus without the revocation prior written consent of such listing or otherwise regarding the delisting Representative. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act. The Company has taken all actions necessary so that any road show in connection with the offering of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSENotes will not be required to be filed pursuant to the Securities Act.
(gj) To The capitalization of the knowledge Company as of September 30, 2021 is as set forth in the financial statements incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus. All the outstanding shares of capital stock of the Company have been, and as of the Closing Date, will be, duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus; except as described in the Time of Sale Information and the Prospectus, the Company is not a party to or bound by any outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such capital stock; the Notes to be issued and sold to the Underwriters by the Company hereunder have been duly authorized and, when issued and delivered to the Underwriters against full payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; the capital stock of the Company conforms to the description thereof in the Registration Statement, the Time of Sale Information and the Prospectus (or any amendment or supplement thereto).
(k) Each of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations Partnership and their subsidiaries is duly formed or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), organized and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties and to operate its property and conduct its business as presently conducted and as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to so register or qualify would not, individually or in the aggregate, reasonably be so qualified or be in good standing would not (i) expected to have a material adverse effect on the assetscondition, business, condition (financial or otherwise), earnings, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, whole (financial or otherwise) (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder (including the issuance and sale of the Notes and the use of proceeds from the sale of the Notes as described therein under the caption “Use of Proceeds”) and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(nm) The Articles Supplementary Notes to be purchased by the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Underwriters pursuant to this Agreement have been duly authorized for issuance, sale and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized delivery and, when issued and delivered by the Company pursuant to this Agreement against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementaryconsideration set forth herein, will be validly issued, fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, the issuance of such shares of Common Stock Notes will not be subject toto any preemptive, co-sale right, registration right, right of first refusal or similar rights.
(n) All of the issued and outstanding shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”) and the Company’s 8.50% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”): (i) have been duly authorized and validly issued, are fully paid and nonassessable and (ii) have been issued in compliance with federal and state securities laws.
Appears in 2 contracts
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.), Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby"1934 Act Regulations"), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG Peat Marwick LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein. The Company's ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act, the 1933 Act Regulations and guidelines of the American Institute of Certified Public Accountants with respect to pro forma financial information and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i"Properties") or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (iia "Property Partnership") being herein (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the "Duke Group"), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a “Material Adverse Effect”).
whole; (jE) The neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been duly organized, is validly existing no material change in the short-term debt or long-term debt of the Duke Group as a limited whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in good standing under the laws Operating Partnership ("Units") and the issuance of Units in connection with the State acquisition of Delaware real or personal property, there has been no change in the full power and authority to own capital stock or leasein the partnership interests, as the case may be, its property and to operate its property and conduct its business as described in of the Registration Statement Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Prospectus Operating Partnership has been duly formed, and is duly qualified to transact business validly existing and is in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign limited partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a "Material Adverse Effect. All of ").
(xi) If the applicable Underwritten Securities are issued by the Company, and if the Prospectus contains the caption "Capitalization," the authorized, issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company as of the date specified therein is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the Company.
(xii) If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Prospectus contains the caption "Capitalization," the partner's equity of the Operating Partnership is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code Section 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the "Services Partnership") and Duke Construction Limited Partnership (the "Construction Partnership"), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company that are “significant subsidiaries” Duke Group considered as a single enterprise. Duke Services, Inc. is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and DMI Partnership are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. The Services Partnership is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is owned 4.04% by the Services Partnership and 95.96% by DMI Partnership.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rxiv) Except as for transactions described in the Registration Statement Prospectus and the Prospectustransactions in connection with dividend reinvestment plans, and stock option and other employee benefit plans, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company are outstandingCompany, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the Company pursuant to this Agreement and the applicable Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementTerms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company such Underwritten Securities in accordance herewith, each of the purchasers thereof Underwriters will receive good, valid and marketable title to such Placement SharesUnderwritten Securities, free and clear of all Lienssecurity interests, mortgages, pledges, liens, encumbrances, claims and equities. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toapplicable Underwritten Securities conform to all statements and
Appears in 2 contracts
Sources: Underwriting Agreement (Duke Realty Investments Inc), Underwriting Agreement (Duke Realty Investments Inc)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a “Representation Date”), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term “Prospectus” refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “Ratios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been no material change in the short-term debt or long-term debt of the Duke Group as a whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, interference the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(iix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(iix) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxi) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise. The Company that are “significant subsidiaries” is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and Duke Management, Inc. are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. Duke Business Centers Corporation, a wholly-owned subsidiary of Duke Realty Construction, Inc. is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is wholly owned by the Operating Partnership.
(mxiv) The Operating Partnership has Except for transactions described in the partnership power Prospectus and authority to execute transactions in connection with dividend reinvestment plans, stock option and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorizationother employee benefit plans, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized Shares and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as otherwise set forth in the Registration Statement and the Prospectus (except for subsequent issuancesbelow, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units. The Company are outstandingis required to purchase Duke Management, Inc.’s interest in the Services Partnership for 833,334 Units upon a change in control of the Company or a dissolution of the Operating Partnership.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the Company pursuant to this Agreement and the applicable Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementTerms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company such Underwritten Securities in accordance herewith, each of the purchasers thereof Underwriters will receive good, valid and marketable title to such Placement SharesUnderwritten Securities, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tosec
Appears in 2 contracts
Sources: Underwriting Agreement (Duke Realty Corp), Underwriting Agreement (Duke Realty Limited Partnership/)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that Representatives, as of the date hereof, and to the Representatives and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q“Representation Date”), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) Pursuant to the 1933 Act and the 1933 Act Regulations, the Registration Statement automatically became effective upon the filing thereof with the Commission; no stop order suspending the effectiveness of the Registration Statement has been received by the Company, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. The Registration Statement is an “automatic effective registration statement” as defined under Rule 405 of the 1933 Act that has been filed with the Commission not earlier than three years prior to the date hereof; 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) under the 1933 Act has been received by the Company or the Operating Partnership. No stop order preventing or suspending the use of the Time of Sale Prospectus or the Prospectus has been issued received by the CommissionCompany, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the 1933 Act, the Company or the Operating Partnership, as applicable, is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the ProspectusCompany or the Operating Partnership, as applicable, has not received notice that the Commission objects to the use of its date the Registration Statement as an automatic shelf registration statement.
(ii) The Registration Statement at the time the Registration Statementbecame effective, complied, and as of each Representation Date will comply, in all material respects with the date requirements of any amendment or supplement the 1933 Act, the 1933 Act Regulations and on any Settlement Datethe 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not, does and as of each Representation Date, 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. The Time of Sale Prospectus, at the time of each sale of the applicable Underwritten Securities (the “Applicable Time”), the Closing Time and the Date of Delivery, if any, as then amended or supplemented by the Company, if applicable, will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date Closing Time and Date of the Prospectus and any amendment or supplement theretoDelivery, if any, will not contain any 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; provided. Notwithstanding the foregoing, however, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(iii) Each preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and warranty any Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 433 (to the extent prepared by the Company) under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iv) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the ProspectusProspectus pursuant to Item 12 of Form S-3ASR under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(h), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(v) Each of the Company and the Operating Partnership is not an“ineligible issuer” in connection with the offering of the applicable Underwritten Securities pursuant to Rules 164, however405 and 433 under the 1933 Act. Any free writing prospectus that the Company or the Operating Partnership is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company and the Operating Partnership make no representation has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company and warranty the Operating Partnership complies or will comply in all material respects with respect the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I to the applicable Terms Agreement, and electronic road shows each furnished to you before first use, if any, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Agent Informationfree writing prospectus.
(evi) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) The Company was not an financial statements included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement, Time of Sale Prospectus and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “ineligible issuerRatios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(as defined in Rule 405viii) Since the respective dates as of which information is given in the eligibility determination date for purposes Registration Statement, the Time of Rules 164 Sale Prospectus and 433 under the Securities Act with respect to Prospectus (in the offering case of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”as updated by information incorporated by reference therein), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as otherwise stated therein, (A) there has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described no material adverse change in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationcondition, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), or in the earnings, properties, management, results of operations assets or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined) as a whole, in the condition, financial or otherwise, or in the earnings, assets or business prospects of any of the real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no casualty loss, condemnation or other adverse event with respect to any Property has occurred, which is material to the Duke Group taken as a whole; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (iiF) prevent there has been no material change in the short-term debt or materially interfere with consummation long-term debt of the transactions contemplated hereby Duke Group as a whole; (G) except for quarterly dividends on the occurrence Common Stock, dividends on the Preferred Stock, and any dividend necessary to maintain REIT status, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with director and employee equity compensation plans, interference employee stock purchase plans, other employee benefit plans, the Duke Realty 401(k) Plan, direct stock purchase and dividend reinvestment plans, and the Company’s at the market equity program, the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(ix) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Time of Sale Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company’s and the Operating Partnership’ssubsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Time of Sale Prospectus.
(iixi) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxii) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Time of Sale Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws in all material respects (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxiii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Time of Sale Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiv) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or other defects of any kind (collectively, “Liens”)equity. Schedule 3 hereto specifically identifies all subsidiaries of Neither the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in nor the Operating Partnership (“OP Units”) owns any direct or indirect equity interest in any entity other ownership than the subsidiaries and the Property Partnerships, except for such interests as, in the Operating Partnership aggregate, are outstanding.
(s) Except as described in not material to the Registration Statement and the Prospectuscondition, no options, warrants financial 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toothe
Appears in 2 contracts
Sources: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Agent that as of Closing Date and the date hereofAdditional Closing Date, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)the case may be, and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have has been and remain eligible for registration declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany, threatened by the Commission. The .
(b) At the time of initial filing of the Registration Statement, as at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Series A Preferred Stock, on the date hereofhereof and on the Closing Date or the Additional Closing Date, the Company was not, is not and will not be an “ineligible issuer” (as defined in Rule 405 under the Securities Act).
(c) The Registration Statement and the Prospectus conformed, and any post-effective amendment thereto, as of its applicable effective to the Registration Statement filed after the date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and hereof will comply conform in all material respects with on the date hereof and on the Closing Date or the Additional Closing Date, as applicable, to the requirements of the Securities Act. The Preliminary Prospectus conformed, and the Prospectus to be filed with the Commission pursuant to Rule 424(b) under the Securities Act will conform in all material respects to the requirements of the Securities Act.
(d) The Registration Statement did not and will not as of its effective date contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(e) The Prospectus will not, as of its date and on the date of Closing Date or the Prospectus and any amendment or supplement theretoAdditional Closing Date, will not contain any 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; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to Representative by or on behalf of any Agent Information. The documents incorporatedUnderwriter specifically for inclusion therein, or to be incorporated, by reference which information is specified in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange ActSection 15 hereof.
(df) Other than the Registration Statement and the ProspectusThe Time of Sale Information does not, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepareat the Time of Sale, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to Representative by or on behalf of any Agent InformationUnderwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(eg) The Company was not an Each Issuer Free Writing Prospectus (including, without limitation, any “ineligible issuerroad show” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act Act) that is a free writing prospectus under Rule 433 under the Securities Act), when considered together with respect the Time of Sale Information at the Time of Sale, did not contain an untrue statement of a material fact or omit to state a material fact or necessary to make the offering statements therein, in light of the Placement Shares contemplated by the Registration Statement and the Prospectuscircumstances under which they were made, not misleading.
(fh) The Placement Shares have been authorized for listing Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Shares that would constitute an Issuer Free Writing Prospectus without the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge prior written consent of the Company, there are no contracts or documents of a character which are Representative. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those Securities Act. The Company has taken all actions necessary so that are so filed.
(h) To any road show in connection with the knowledge offering of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed Shares will not be required to be filed pursuant to the Representatives in writingSecurities Act.
(i) The capitalization of the Company has as of March 31, 2020 is as set forth in the Registration Statement, the Time of Sale Information and the Prospectus. All the outstanding shares of capital stock of the Company have been, and as of the Closing Date and the Additional Closing Date, as the case may be, will be, duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus; except as described in the Time of Sale Information and the Prospectus, the Company is not a party to or bound by any outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such capital stock; the Shares to be issued and sold to the Underwriters by the Company hereunder have been duly incorporatedauthorized and, when issued and delivered to the Underwriters against full payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; the capital stock of the Company conforms to the description thereof in the Registration Statement, the Time of Sale Information and the Prospectus (or any amendment or supplement thereto).
(j) Each of the Company, the Operating Partnership and their subsidiaries is duly formed or organized and validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties and to operate its property and conduct its business as presently conducted and as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to so register or qualify would not, individually or in the aggregate, reasonably be so qualified or be in good standing would not (i) expected to have a material adverse effect on the assetscondition, business, condition (financial or otherwise), earnings, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, whole (financial or otherwise) (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder (including the issuance and sale of the Shares and the use of proceeds from the sale of the Shares as described therein under the caption “Use of Proceeds” and any issuance of the shares of Common Stock upon conversion of the Shares), and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) . The Articles Supplementary will be, prior to the Company’s Closing Date, duly authorized, executed and filed by the Company with the SDAT. The amendment to the Amended and Restated Articles Agreement of Incorporation the Operating Partnership (the “Operating Partnership Agreement Amendment”) setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, A preferred units of limited partnership interest in the Operating Partnership (the “OP Series A Preferred Units”) or other ownership interests in will be, prior to the Closing Date, duly authorized, executed and delivered. The Operating Partnership Agreement Amendment will, prior to the Closing Date, constitute a legally valid and binding agreement of the Operating Partnership are outstanding.
(s) Except as described in enforceable against the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore Operating Partnership in accordance with its terms, except to the terms of this Agreementextent that such enforceability may be limited by applicable bankruptcy, will be validly issuedinsolvency, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject reorganization or other similar laws relating to or in violation affecting creditors’ rights and general principles of any preemptive equity and except as rights to indemnity and contribution thereunder may be limited by applicable law or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to policies underlying such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSElaw.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 2 contracts
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.), Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that Representatives, as of the date hereof, and to the Representatives and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q“Representation Date”), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) Pursuant to the 1933 Act and the 1933 Act Regulations, the Registration Statement automatically became effective upon the filing thereof with the Commission; no stop order suspending the effectiveness of the Registration Statement has been received by the Company, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. The Registration Statement is an “automatic effective registration statement” as defined under Rule 405 of the 1933 Act that has been filed with the Commission not earlier than three years prior to the date hereof; 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) under the 1933 Act has been received by the Company or the Operating Partnership. No stop order preventing or suspending the use of the Time of Sale Prospectus or the Prospectus has been issued received by the CommissionCompany, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the 1933 Act, the Company or the Operating Partnership, as applicable, is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the ProspectusCompany or the Operating Partnership, as applicable, has not received notice that the Commission objects to the use of its date the Registration Statement as an automatic shelf registration statement.
(ii) The Registration Statement at the time the Registration Statement became effective, complied, and as of each Representation Date will comply, in all material respects with the date requirements of any amendment or supplement the 1933 Act, the 1933 Act Regulations and on any Settlement Datethe 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not, does and as of each Representation Date, 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. The Time of Sale Prospectus, at the time of each sale of the applicable Underwritten Securities (the “Applicable Time”), the Closing Time and the Date of Delivery, if any, as then amended or supplemented by the Company, if applicable, will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date Closing Time and Date of the Prospectus and any amendment or supplement theretoDelivery, if any, will not contain any 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; provided. Notwithstanding the foregoing, however, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(iii) Each preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and warranty any Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 433 (to the extent prepared by the Company) under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iv) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(h), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(v) Each of the Company and the Operating Partnership is not an “ineligible issuer” in connection with the offering of the applicable Underwritten Securities pursuant to Rules 164, however405 and 433 under the 1933 Act. Any free writing prospectus that the Company or the Operating Partnership is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company and the Operating Partnership make no representation has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company and warranty the Operating Partnership complies or will comply in all material respects with respect the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I to the applicable Terms Agreement, and electronic road shows each furnished to you before first use, if any, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Agent Informationfree writing prospectus.
(evi) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) The Company was not an financial statements included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement, Time of Sale Prospectus and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “ineligible issuerRatios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(as defined in Rule 405viii) Since the respective dates as of which information is given in the eligibility determination date for purposes Registration Statement, the Time of Rules 164 Sale Prospectus and 433 under the Securities Act with respect to Prospectus (in the offering case of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”as updated by information incorporated by reference therein), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as otherwise stated therein, (A) there has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described no material adverse change in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationcondition, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), or in the earnings, properties, management, results of operations assets or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined) as a whole, in the condition, financial or otherwise, or in the earnings, assets or business prospects of any of the real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no casualty loss, condemnation or other adverse event with respect to any Property has occurred, which is material to the Duke Group taken as a whole; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (iiF) prevent there has been no material change in the short-term debt or materially interfere with consummation long-term debt of the transactions contemplated hereby Duke Group as a whole; (G) except for quarterly dividends on the occurrence Common Stock, dividends on the Preferred Stock, and any dividend necessary to maintain REIT status, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with director and employee equity compensation plans, interference employee stock purchase plans, other employee benefit plans, the Duke Realty 401(k) Plan, direct stock purchase and dividend reinvestment plans, and the Company’s at the market equity program, the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(ix) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Time of Sale Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Time of Sale Prospectus.
(iixi) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxii) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Time of Sale Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws in all material respects (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxiii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Time of Sale Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiv) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or other defects of any kind (collectively, “Liens”)equity. Schedule 3 hereto specifically identifies all subsidiaries of Neither the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in nor the Operating Partnership (“OP Units”) owns any direct or indirect equity interest in any entity other ownership than the subsidiaries and the Property Partnerships, except for such interests as, in the Operating Partnership aggregate, are outstanding.
(s) Except as described in not material to the Registration Statement and the Prospectuscondition, no options, warrants financial 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tooth
Appears in 2 contracts
Sources: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and QualityTech, LP, a Delaware limited partnership (the “Operating Partnership, ”) jointly and severallyseverally represents, represent warrants and warrant covenants to the Agent that Underwriter, as of the date hereofof this Agreement, as of each Representation the First Closing Date (as defined belowhereinafter defined) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementOption Closing Date (as hereinafter defined), if any, as follows:
(a) The Registration Statement has become effective under the Securities Act. The Company has complied, to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental information, if any. No stop order preventing or suspending the use effectiveness of the Prospectus has Registration Statement is in effect and no proceedings for such purpose have been issued instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission. At the time the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 (the “Annual Report”) was filed with the Commission, or, if later, at the time the Registration Statement was originally filed with the Commission, the Company met the then-applicable requirements for use of Form S-3 under the Securities Act. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission, or became effective under the Exchange Act, as the case may be, complied and will comply in all material respects with the requirements of the Exchange Act.
(b) Each preliminary prospectus complies, and the Prospectus when filed will comply, as to form in all material respects with the Securities Act and, if filed by electronic transmission pursuant to E▇▇▇▇, was identical (except as may be permitted by Regulation S-T under the Securities Act) to the copy thereof delivered to the Underwriter for use in connection with the offer and sale of the Offered Shares. Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, the Time of Sale Prospectus (including any preliminary prospectus wrapper) did not, and at the First Closing Date (as defined in Section 2) and at each applicable Option Closing Date (as defined in Section 2), will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus (including any Prospectus wrapper), as of its date and as of the date of any amendment or supplement and on any Settlement Datedate, did not, does not and at the First Closing Date and at each applicable Option Closing Date, will not not, contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with representations and warranties set forth in the Commission. No order suspending the effectiveness of three immediately preceding sentences do not apply to statements in or omissions from the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, or any preliminary prospectus, the Prospectus or the Time of Sale Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with written information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use therein. There are no contracts or other documents required to be described in the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been described or filed as required.
(c) As of its applicable effective the determination date referenced in Rule 164(h) under the Securities Act, the Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of the Offered Shares pursuant to Rules 164, 405 and at each deemed effective date with respect 433 under the Securities Act. Each free writing prospectus that the Company is required to Agents file pursuant to Rule 430B(f)(2433(d) and at each Settlement Dateunder the Securities Act has been, complied and or will be, filed with the Commission in accordance with the requirements of the Securities Act. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of Rule 433 under the Securities Act, including timely filing with the Commission or retention where required and did not legending, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and each such free writing prospectus, as of its issue date and at all subsequent times through the date completion of the Prospectus public offer and any amendment or supplement thereto, will not contain 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 sale of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and Offered Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, the Prospectus or any preliminary prospectus and not superseded or modified. Except for the Prospectusfree writing prospectuses, including any document incorporated by reference therein that if any, identified in Schedule B, and Road Shows, if any, furnished to you before first use, the Company has not been superseded prepared, used or modified andreferred to, and will not, without your prior written consent, prepare, use or refer to, any free writing prospectus. Each Road Show, when taken considered together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Time of Sale Prospectus, did not and will not not, as of the Applicable Time, contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(ed) The Company was not an “ineligible issuer” (as defined financial statements included or incorporated by reference in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance together with the rules of the NYSErelated schedules and notes, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives present fairly in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and leaseall material respects, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, position of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations or prospects and cash flows of the CompanyCompany and its consolidated subsidiaries for the periods specified, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation to the Company’s and the Operating Partnership’s knowledge, the financial position of Carpathia and its consolidated subsidiaries as of the transactions contemplated hereby dates indicated and the results of operations and cash flows for the periods specified, and all such financial statements, and with respect to Carpathia, to the Company’s and the Operating Partnership’s knowledge, have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the occurrence of any such effectperiods presented; the supporting schedules, preventionif any, interference or result described in the foregoing clauses relating to (i) or the Company and its consolidated subsidiaries and (ii) being herein referred to as a “Material Adverse Effect”).
(j) The the Company’s and the Operating Partnership has been duly organizedPartnership’s knowledge, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power Carpathia and authority to own or leaseits consolidated subsidiaries, as the case may be, its property and present fairly in all material respects in accordance with GAAP the information required to operate its property and conduct its business as described be stated therein; the selected financial data included or incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus present fairly in all material respects the information shown therein and is duly qualified have been compiled on a basis consistent with that of the audited, or unaudited, as applicable, financial statements of the Company and its consolidated subsidiaries included or incorporated by reference therein; the unaudited pro forma condensed consolidated financial statements of the Company, and the related notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly in all material respects the information shown therein, have been prepared in all material respects in accordance with the Commission’s rules and guidelines with respect to transact business pro forma financial statements and is have been properly compiled on the bases described therein, and the assumptions used in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except preparation thereof are reasonable and the adjustments used therein give appropriate effect to the extent that the failure transactions and circumstances referred to therein; no financial statements (historical or pro forma) or supporting schedules are required to be so qualified included or be in good standing would not, individually or incorporated by reference in the aggregateRegistration Statement, have a Material Adverse Effect.
(k) Each the Time of Sale Prospectus or the Prospectus under the Securities Act or the rules or regulations thereunder or the Exchange Act other than those that are so included or incorporated by reference therein; and all disclosures contained in the Registration Statement, the Preliminary Prospectus, Time of Sale Prospectus and the Prospectus regarding “significant subsidiarynon-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in Rule 1-02(w) all material respects with Regulation G under the Exchange Act, and Item 10 of Regulation S-XK under the Securities Act, in each case to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(e) Prior to the later of (i) the expiration or termination of the option granted to the Underwriter in Section 2 and (ii) the completion of the Underwriter’s distribution of the Offered Shares, the Company has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered Shares other than the Operating Partnership (each a “Subsidiary” Registration Statement, the Time of Sale Prospectus, the Prospectus, any free writing prospectus reviewed and collectively consented to by the “Subsidiaries”) has been duly organizedUnderwriter, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporationfree writing prospectuses, limited partnership or limited liability companyif any, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have identified on Schedule B hereto.
(f) This Agreement has been duly authorized, are validly issued, fully paid executed and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed delivered by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”)Operating Partnership.
(og) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will Offered Shares conform in all material respects to all statements related to the description thereof Shares contained in the Registration Statement and Statement, the Time of Sale Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units holder of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation personal liability by reason of being such a holder; any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be certificates used to evidence the Placement Shares will be is in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement due and will be in proper form and will comply complies in all material respects with all applicable legal requirements, the requirements of the articles of amendment and restatement of the Company (the “Articles of Amendment and Restatement, as ”) and the amended or supplemented through and restated bylaws of the date hereof Company (the “CharterBylaws”), and Bylaws, as amended, of the Company ) and the requirements of the New York Stock Exchange (the “NYSE”).
(uh) The shares of Common Stock initially issuable upon conversion of There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Series D Preferred Stock Registration Statement or included in the offering contemplated by this Agreement, other than the Selling Stockholder with respect to the Offered Shares included in the Registration Statement, except for such rights as have been duly authorized waived.
(i) None of the Operating Partnership, the Company or any of their respective subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus any loss or interference with its business or the 12 Properties identified in Schedule C hereto (the “Properties”) from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, in each case, that could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, business prospects, financial condition or results of operations of the Company, the Operating Partnership and the Operating Partnership’s subsidiaries considered as one enterprise (a “Material Adverse Effect”), otherwise than as set forth or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus; and, when issued upon conversion since the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there has not been any change in the capital stock of the Series D Preferred Stock Company or any OP Units (as defined below) or long term debt of the Operating Partnership or any of its subsidiaries or of the Company or any change that could reasonably be expected to have, individually or in accordance the aggregate, a Material Adverse Effect, otherwise than as set forth or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(i) The Operating Partnership and its subsidiaries have good and marketable title in fee simple to, or leasehold or subleasehold interests in, as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, as the case may be, the Properties and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or such as do not materially affect the value of such property and do not interfere with the terms use made and proposed to be made of such property by the Operating Partnership and its subsidiaries; (ii) except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, none of the Articles SupplementaryOperating Partnership, will the Company or any of their respective subsidiaries owns any real property other than the Properties; (iii) each of the leases and subleases relating to a Property, if any, material to the business of the Operating Partnership and its subsidiaries, considered as one enterprise, are in full force and effect, with such exceptions as do not materially interfere with the use made or proposed to be validly issued, fully paid and nonassessablemade of such Property by the Operating Partnership or any of its subsidiaries, and (a) no material default or event of default has occurred and is continuing under any lease or sublease with respect to such Property and none of the issuance Operating Partnership, the Company or any of their respective subsidiaries has received any notice of any event which, whether with or without the passage of time or the giving of notice, or both, would constitute a default under such shares lease or sublease and (b) none of Common Stock will the Operating Partnership, the Company or any of their respective subsidiaries has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Operating Partnership, the Company or any of their respective subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Operating Partnership, the Company or any of their respective subsidiaries to the continued possession of the leased or subleased premises under any such lease or sublease; (iv) all liens, charges, encumbrances, claims or restrictions on any of the Properties or assets of any of the Operating Partnership, the Company or any of their respective subsidiaries that are required to be disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus are disclosed therein; (v) no tenant under any of the leases at the Properties has a right of first refusal or an option to purchase the premises demised under such lease; (vi) each of the Properties complies in all material respects 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 Registration Statement, the Time of Sale Prospectus and the Prospectus; (vii) the mortgages that encumber certain of the Properties are not be subject toconvertible into equity securities of the entity owning a particular property; and (viii) none of the Operating Partnership, the Company or any of their respective subsidiaries or, to the knowledge of any of the Operating Partnership, the Company or any of their respective subsidiaries, any lessee of any of the Properties is in default under any of the leases governing the Properties that would have a material adverse effect on the Operating Partnership, the Company or any o
Appears in 2 contracts
Sources: Underwriting Agreement (QualityTech, LP), Underwriting Agreement (QualityTech, LP)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Company’s operating partnership, MPT Operating Partnership, L.P., a Delaware limited liability partnership and majority-owned subsidiary of the Company (the “Operating Partnership”) jointly and severally, severally represent and warrant to and agree with the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementManager that:
(a) No order preventing or suspending An automatic shelf registration statement on Form S-3 (File No. 333-186812) (the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a“registration statement”) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively called the “Rule 405Act”), including a form of prospectus, has been prepared and filed by the Company not earlier than three years prior to the date hereof, in conformity with the requirements of the Act, and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder (the “Rules and Regulations”).
(c) . The Registration Statement is registration statement contains certain information concerning the offering and sale of the Common Stock, including the Shares, and contains additional information concerning the Company and its business; the Commission has not issued an “automatic shelf registration statement” order preventing or suspending the use of the Basic Prospectus (as defined in Rule 405below), the Prospectus Supplement (as defined below), the Prospectus (as defined below) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending or any Permitted Free Writing Prospectus (as defined below), or the effectiveness of the Registration Statement has been issued by the Commission(as defined below), and no proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has have been initiated instituted or, to the Company’s knowledge of the Company and the Operating Partnership, threatened by the Commission. The Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the date hereofAct, and as such section applies to the Manager, as well as any new registration statement, post-effective amendment theretoor new automatic shelf registration statement as may have been filed pursuant to Sections 4(g) or (h) of this Agreement, including (1) all documents filed as of its applicable effective date and at each a part thereof or incorporated or deemed effective date to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with respect to Agents the Commission pursuant to Rule 430B(f)(2424(b) and at each Settlement Date, complied and will comply in all material respects with under the Securities Act, and did not and will not contain any untrue statement of a material fact to the extent such information is deemed, pursuant to Rule 430B or omit to state a material fact required Rule 430C under the Act, to be stated therein part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Manager and (3) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of each Registration Statement, together with any amendments or necessary in order to make the statements therein not misleading; and supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus and any amendment Supplement,” as used herein, means the final prospectus supplement, relating to the Shares, filed or supplement thereto, will not contain any untrue statement of a material fact to be filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or omit to state a material fact necessary in order to make before the statements thereinsecond business day after the date hereof (or such earlier time as may be required under the Act), in the light of the circumstances under which they were made, not misleading; provided, however, that form furnished by the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents Manager in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects connection with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by Shares. Except where the Registration Statement and context otherwise requires, “Prospectus,” as used herein, means the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance Prospectus Supplement together with the rules of Basic Prospectus attached to or used with the NYSEProspectus Supplement. Notwithstanding the foregoing, includingif any revised basic prospectus, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits prospectus supplement or proceedings pending or, prospectus shall be provided to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned Manager by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject touse
Appears in 2 contracts
Sources: Equity Distribution Agreement (Medical Properties Trust Inc), Equity Distribution Agreement (Medical Properties Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Company’s operating partnership, MPT Operating Partnership, L.P., a Delaware limited liability partnership and majority-owned subsidiary of the Company (the “Operating Partnership”) jointly and severally, severally represent and warrant to and agree with the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementManager that:
(a) No order preventing or suspending An automatic shelf registration statement on Form S-3 (File No. 333-186812) (the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a“registration statement”) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively called the “Rule 405Act”), including a form of prospectus, has been prepared and filed by the Company not earlier than three years prior to the date hereof, in conformity with the requirements of the Act, and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder (the “Rules and Regulations”).
(c) . The Registration Statement is registration statement contains certain information concerning the offering and sale of the Common Stock, including the Shares, and contains additional information concerning the Company and its business; the Commission has not issued an “automatic shelf registration statement” order preventing or suspending the use of the Basic Prospectus (as defined in Rule 405below), the Prospectus Supplement (as defined below), the Prospectus (as defined below) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending or any Permitted Free Writing Prospectus (as defined below), or the effectiveness of the Registration Statement has been issued by the Commission(as defined below), and no proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has have been initiated instituted or, to the Company’s knowledge of the Company and the Operating Partnership, threatened by the Commission. The Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the date hereofAct, and as such section applies to the Manager, as well as any new registration statement, post-effective amendment theretoor new automatic shelf registration statement as may have been filed pursuant to Sections 4(g) or (h) of this Agreement, including (1) all documents filed as of its applicable effective date and at each a part thereof or incorporated or deemed effective date to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with respect to Agents the Commission pursuant to Rule 430B(f)(2424(b) and at each Settlement Date, complied and will comply in all material respects with under the Securities Act, and did not and will not contain any untrue statement of a material fact to the extent such information is deemed, pursuant to Rule 430B or omit to state a material fact required Rule 430C under the Act, to be stated therein part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Manager and (3) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of each Registration Statement, together with any amendments or necessary in order to make the statements therein not misleading; and supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus and any amendment Supplement,” as used herein, means the final prospectus supplement, relating to the Shares, filed or supplement thereto, will not contain any untrue statement of a material fact to be filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or omit to state a material fact necessary in order to make before the statements thereinsecond business day after the date hereof (or such earlier time as may be required under the Act), in the light of the circumstances under which they were made, not misleading; provided, however, that form furnished by the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents Manager in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects connection with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rightsShares. Except as disclosed in where the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectivelycontext otherwise requires, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred StockProspectus,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreementsused herein, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tomeans the
Appears in 2 contracts
Sources: Equity Distribution Agreement (Medical Properties Trust Inc), Equity Distribution Agreement (Medical Properties Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that Representatives, as of the date hereof, and to the Representatives and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q“Representation Date”), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement has been received by the Company, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. No stop order preventing or suspending the use of the Time of Sale Prospectus or the Prospectus has been issued received by the CommissionCompany, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the 1933 Act, the Company or the Operating Partnership, as applicable, is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the ProspectusCompany or the Operating Partnership, as applicable has not received notice that the Commission objects to the use of its date the Registration Statement as an automatic shelf registration statement.
(ii) The Registration Statement at the time the Registration Statement became effective, complied, and as of each Representation Date will comply, in all material respects with the date requirements of any amendment or supplement the 1933 Act, the 1933 Act Regulations and on any Settlement Datethe 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not, does and as of each Representation Date, 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. The Time of Sale Prospectus, at the time of each sale of the applicable Underwritten Securities (the “Applicable Time”), the Closing Time and the Date of Delivery, if any, as then amended or supplemented by the Company, if applicable, will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date Closing Time and Date of the Prospectus and any amendment or supplement theretoDelivery, if any, will not contain any 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; provided. Notwithstanding the foregoing, however, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(iii) Each preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and warranty any Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 433 (to the extent prepared by the Company) under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iv) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(v) Each of the Company and the Operating Partnership is not an “ineligible issuer” in connection with the offering of the applicable Underwritten Securities pursuant to Rules 164, however405 and 433 under the 1933 Act. Any free writing prospectus that the Company or the Operating Partnership is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company and the Operating Partnership make no representation has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company and warranty the Operating Partnership complies or will comply in all material respects with respect the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I to the applicable Terms Agreement, and electronic road shows each furnished to you before first use, if any, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Agent Informationfree writing prospectus.
(evi) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) The Company was not an financial statements included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement, Time of Sale Prospectus and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “ineligible issuerRatios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(as defined in Rule 405viii) Since the respective dates as of which information is given in the eligibility determination date for purposes Registration Statement, the Time of Rules 164 Sale Prospectus and 433 under the Securities Act with respect to Prospectus (in the offering case of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”as updated by information incorporated by reference therein), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as otherwise stated therein, (A) there has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described no material adverse change in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationcondition, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), or in the earnings, properties, management, results of operations assets or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined) as a whole, in the condition, financial or otherwise, or in the earnings, assets or business prospects of any of the real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no casualty loss, condemnation or other adverse event with respect to any Property has occurred, which is material to the Duke Group taken as a whole; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (iiF) prevent there has been no material change in the short-term debt or materially interfere with consummation long-term debt of the transactions contemplated hereby Duke Group as a whole; (G) except for quarterly dividends on the occurrence Common Stock and dividends on the Preferred Stock, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, interference the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(ix) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Time of Sale Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Time of Sale Prospectus.
(iixi) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxii) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Time of Sale Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxiii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Time of Sale Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiv) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise. The Company that are “significant subsidiaries” is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and Duke Management, Inc. are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. Duke Business Centers Corporation, a wholly-owned subsidiary of Duke Realty Construction, Inc. is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is wholly owned by the Operating Partnership.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rxv) Except as for transactions described in the Registration Statement Time of Sale Prospectus 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, units of partnership interest transactions in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance connection with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject todivid
Appears in 2 contracts
Sources: Terms Agreement (Duke Realty Corp), Terms Agreement (Duke Realty Limited Partnership/)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementUnderwriter that:
(a) No Each prospectus or preliminary prospectus included as part of the registration statement as originally filed, or as part of any amendment or supplement thereto that is related to the Shares, or filed pursuant to Rule 424 under the Act that is related to the Shares, complied when so filed in all material respects with the provisions of the Act, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter expressly for use therein. The Commission has not issued any order preventing or suspending the use of the Prospectus has been issued by the Commission, Prospectus.
(b) The Company and the Prospectustransactions contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) under the Act, as of its date and as complied or will comply in all material respects with the provisions of the date of any amendment or supplement and on any Settlement Date, did not, does not Act and will not at any such times contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, the Company and the Operating Partnership make no except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with respect information relating to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant Underwriter furnished to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company in writing by or on behalf of any person acting on its behalf (within the meaning, Underwriter expressly for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”))use therein.
(c) The Registration Statement is an “automatic shelf registration statement” Incorporated Documents heretofore filed, when they were filed (as defined or, if any amendment with respect to any such document was filed, when such amendment was filed), complied in Rule 405) all material respects with the requirements of the Exchange Act and the Securities have been rules and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereofregulations thereunder, and any post-effective amendment theretofurther Incorporated Documents so filed will, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datewhen they are filed, complied and will comply in all material respects with the Securities Actrequirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, and did not and will not contain if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement theretono such further document, when it is filed, will not contain any an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading.
(d) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights; the Shares have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; the Class A Common Stock issuable upon conversion of the Shares has been duly and validly reserved for issuance and, when issued and delivered against payment therefore in accordance with the terms of the articles of incorporation of the Company, will be validly issued, fully paid and nonassessable; and the capital stock of the Company conforms in all material respects to the description thereof in the light Registration Statement and the Prospectus. The Preferred Units have been duly authorized and, when issued to the Company, will be validly issued. Except as described in, or contemplated by, the Registration Statement and the Prospectus, and except for options or other securities issued to employees, officers or directors of the circumstances under which they were made, not misleading; provided, however, that the Company and or the Operating Partnership make pursuant to a stock-based plan of the Company or the Operating Partnership, there are no representation outstanding options, convertible or exchangeable securities, warrants or other rights calling for the issuance of capital stock of the Company.
(e) The Company is a corporation duly organized and warranty validly existing in good standing under the laws of the State of Maryland with respect full corporate power and authority to any Agent Information. The documents incorporatedown, or lease and operate its properties and to be incorporated, by reference conduct its business as described in the Registration Statement and the Prospectus, at and is duly qualified to conduct its business and is in good standing in each jurisdiction or place where the time filed with nature of its properties or the Commissionconduct of its business requires such registration or qualification, complied except where the failure so to qualify does not have a material adverse effect on the financial condition, business, properties, or will comply, in all respects to the requirements results of operations of the Exchange ActCompany and its subsidiaries, taken as a whole.
(df) Other than Each Subsidiary is a corporation, limited partnership, limited liability company or trust, as the case may be, duly organized or formed and validly existing under the laws of its jurisdiction of organization or formation, with corporate, limited partnership, limited liability company or trust power and authority, as the case may be, to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, and is duly qualified to conduct its business in each jurisdiction or place where the nature of its properties or the conduct of its business requires such qualification, except where the failure so to qualify does not have a material adverse effect on the financial condition, business, properties, or results of operations of the Company and its subsidiaries, taken as a whole.
(including its agents and representativesg) All of the shares of capital stock, other than partnership interests, limited liability company membership interests or trust beneficial interests, as the Agents in their capacity as such) has not preparedcase may be, usedissued by the Subsidiaries or created by agreements to which the Subsidiaries are parties, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) belowhave been duly and validly issued or created (and in the case of capital stock are fully paid and nonassessable) and (ii) are owned or held, directly or indirectly through Subsidiaries, by the Company in the percentage amounts set forth on Schedule II hereto free and clear of any security interest, lien, adverse claim, equity or other than encumbrance (each of the foregoing, a "Lien"), except for such Liens as (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained are described in the Registration Statement or the ProspectusProspectus or, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying(ii) are set forth in Schedule II, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did (iii) would not and will not contain any untrue statement of have a material fact adverse effect on the financial condition, business, properties, or omit to state a material fact necessary in order to make the statements therein, in the light results of the circumstances under which they were made, not misleading; provided, however, that operations of the Company and its subsidiaries, taken as a whole.
(h) As of the date hereof, the Company indirectly owned an aggregate approximate 83% partnership interest in the Operating Partnership make no representation free and warranty with respect to any Agent Informationclear of all Liens. A wholly-owned subsidiary of the Company is the sole general partner of the Operating Partnership.
(ei) The Company was not an “ineligible issuer” (has the corporate power and authority to enter into this Agreement and to issue, sell and deliver the Shares to the Underwriters as defined in Rule 405) provided herein. The Operating Partnership has the power and authority to enter into this Agreement and to issue and deliver the Preferred Units to the Company as provided herein. This Agreement and each of the eligibility determination date for purposes of Rules 164 and 433 under agreements executed by the Securities Act with respect to the offering executive officers of the Placement Shares contemplated Company pursuant to which such executive officers agree not to offer for sale or sell shares of Class A Common Stock or securities convertible into or exercisable or exchangeable for shares of Class A Common Stock in a public offering, except for units of the Operating Partnership (each a "Lock-Up Agreement") have been duly authorized, executed and delivered by the Registration Statement Company, the Operating Partnership and each of the Prospectus.executive officers of the Company party thereto
(fj) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there There are no actions, suits legal or governmental proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedthreatened, and against the Company has not received or any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the CompanySubsidiaries or to which the Company or any of the Subsidiaries, there are no contracts or documents any of a character which their respective properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits an exhibit to the Registration Statement other than those or any Incorporated Document that are so filednot described or filed as required by the Act or the Exchange Act.
(hk) To Neither the knowledge Company nor any of the Subsidiaries is (i) in violation of its certificate or articles of incorporation or by-laws or certificates or agreements of limited partnership, limited liability company or trust or other organizational documents, or (ii) in violation of any law, ordinance, administrative or governmental rule or regulation applicable to the Company or the Subsidiaries or of any decree of any court or governmental agency or body having jurisdiction over the Company or the Subsidiaries, or any of their respective properties or (iii) in default in any material respect in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties is bound, except, with respect to clauses (ii) and (iii) above, for any defaults which, singly or in the aggregate, would not have a material adverse effect on the financial condition, business, properties or results of operations of the Company and its subsidiaries, taken as a whole.
(l) None of the issuance and sale of the Shares by the Company, the issuance of the Preferred Units by the Operating Partnership, the execution, delivery or performance of this Agreement by the Company and the Operating Partnership, there are no affiliations or associations between the consummation by the Company and the Operating Partnership of the transactions contemplated hereby (i) requires any member consent, approval, authorization or other order of or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required for the registration of the Financial Industry Regulatory AuthorityShares under the Act and the Exchange Act and compliance with the securities or Blue Sky or real estate syndication laws of various jurisdictions, Inc. to the extent applicable, and the filing of the Prospectus Supplement with the Commission pursuant to rule 424(b) under the Act, all of which have been or will be effected in accordance with this Agreement, and except for the filing of the Articles Supplementary (“FINRA”as hereinafter defined) with the SDAT (as hereinafter defined), and (iiwhich filing with the SDAT will be made prior to the Closing Date) or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws or certificates or agreements of limited partnership, limited liability company or trust or other organizational documents of the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent conflicts or materially interfere will conflict with consummation or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Company or the Subsidiaries is a party or by which any of them or any of their respective properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the transactions contemplated hereby (Company or the occurrence Subsidiaries or any of their respective properties, or will result in the creation or imposition of any such effect, prevention, interference Lien upon any property or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary assets of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation Subsidiaries pursuant to the terms of any preemptive agreement or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company instrument to which any of them is a party or the Operating Partnership, as the case by which any of them may be, owns, directly be bound or indirectly, all to which any of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company property or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects assets of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly takenthem is subject.
(m) The Operating Partnership has Ernst & Young LLP and Beers & Cutl▇▇ ▇▇▇C, who have certified the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery financial statements included or incorporated by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth reference in the Registration Statement and the Prospectus (except for subsequent issuancesor any amendment or supplement thereto), if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant are independent public accountants with respect to the exerciseCompany and its subsidiaries as required by the Act.
(n) The financial statements, redemptiontogether with related schedules and notes, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to of any properties or entities acquired by the description thereof contained Company included or incorporated by reference in the Registration Statement and the Prospectus under (and any amendment or supplement thereto), present fairly (i) the caption “Description consolidated financial position, results of Common operations and Preferred Stock.”
changes in financial position of the Company and its subsidiaries and (qii) The Common Stock the combined revenues and certain expenses of the properties or entities acquired by the Company, as the case may be, on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the Series D Preferred Stock conform other financial and will conform as to legal matters to the descriptions thereof contained statistical information and data included or incorporated by reference in the Registration Statement and the Prospectus (or any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with such financial statements and the books and records (i) of the Company and its subsidiaries and (ii) the properties or entities acquired by the Company, as the case may be. The selected historical financial data of the Company set forth under the caption “Description "Summary Historical Financial Information" in the Prospectus Supplement, present fairly, on the basis stated in the Prospectus Supplement, the historical financial information of Common the Company included therein. The unaudited pro forma financial statements included, or incorporated by reference, in the Prospectus Supplement comply in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X and Preferred Stockthe pro forma adjustments have been properly applied to the historical amounts in the compilation of that data. The selected pro forma financial data of the Company set forth under the caption "Summary Pro Forma Financial and Operating Information" and "Capitalization" in the Prospectus Supplement present fairly, on the basis stated in the Prospectus Supplement, the pro forma financial information of the Company included therein and have been compiled on a basis consistent with that of the unaudited pro forma financial statements included, or incorporated by reference, in the Prospectus.”
(ro) Except as described disclosed in or contemplated by the Registration Statement and the Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the ProspectusProspectus (or any amendment or supplement thereto), no optionsneither the Company nor any of the Subsidiaries has incurred any liability or obligation, warrants direct or other rights to purchase, agreements or other obligations to issuecontingent, or rights to convert entered into any obligations into or exchange any securities fortransaction, units of partnership interest not in the Operating Partnership ordinary course of business, that is material to the Company and its subsidiaries, taken as a whole, and there has not been any change in (“OP Units”or repurchase or declaration of dividends or distributions on) the capital stock, or other ownership interests material increase in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement and the Prospectus, no options, warrants short-term debt 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and nonlong-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amendedterm debt, of the Company and or any of its subsidiaries, or any material adverse change, or any development involving or which may reasonably be expected to involve, a prospective material adverse change, in the requirements financial condition, business, properties, or results of operations of the NYSECompany and its subsidiaries, taken as a whole.
(up) The shares Except as disclosed in the Prospectus, the Company and each Subsidiary (i) is in compliance with all applicable federal, state and local laws and regulations relating to the protection of Common Stock initially issuable upon conversion of human health and safety, the Series D Preferred Stock have been duly authorized andenvironment or hazardous or toxic substances or wastes, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementarypollutants or contaminants ("Environmental Laws"), will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to(ii) ha
Appears in 1 contract
Sources: Underwriting Agreement (Apartment Investment & Management Co)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as to, and agree with, each of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementseveral Underwriters that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and A registration statement on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty Form S-11 (File No. 333-47975) with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of Securities, including a prospectus subject to completion, has been filed by the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying Company with Section 10(a)(3) of the Securities Act and Exchange Commission (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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"Commission") under the Securities Act of 1933, as amended (the "Act"), and one or more amendments to such registration statement may have been so filed. After the execution of this Agreement, the Company will file with the Commission either (i) made any offer if such registration statement, as it may have been amended, has been declared by the Commission to be effective under the Act, either (A) if the Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined) relating to the Securities in reliance on Securities, that shall identify the exemption of Rule 163 Preliminary Prospectus (as hereinafter defined) that it supplements containing such information as is required or permitted by Rules 434, 430A and 424(b) under the Securities Act or (B) if the Company does not rely on Rule 434 under the Act, a prospectus in the form most recently included in an amendment to such registration statement (or, if no such amendment shall have been filed, in such registration statement), with such changes or insertions as are required by Rule 430A under the Act or permitted by Rule 424(b) under the Act, and in the case of either clause (Di)(A) or (i)(B) of this sentence as have been provided to and approved by the Representatives prior to the execution of this Agreement, or (ii) if such registration statement, as it may have been amended, has not been declared by the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 Commission to be effective under the Securities Act (“Rule 405”)).
(c) The Registration Statement is Act, an “automatic shelf amendment to such registration statement” (as defined in Rule 405) , including a form of prospectus, a copy of which amendment has been furnished to and the Securities have been and remain eligible for registration approved by the Company on such automatic shelf registration statementRepresentatives prior to the execution of this Agreement. The Registration Statement became Company may also file a related registration statement with the Commission pursuant to Rule 462(b) under the Act for the purpose of registering certain additional Securities, which registration shall be effective upon filing with the Commission. No order suspending As used in this Agreement, the effectiveness of term "Original Registration Statement" means the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related registration statement initially filed relating to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementSecurities, as of amended at the date hereoftime when it was or is declared effective, including all financial schedules and exhibits thereto and including any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents information omitted therefrom pursuant to Rule 430B(f)(2430A under the Act and included in the Prospectus (as hereinafter defined); the term "Rule 462(b) and at each Settlement Date, complied and will comply in all material respects Registration Statement" means any registration statement filed with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit Commission pursuant to state a material fact required to be stated therein or necessary in order to make Rule 462(b) under the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in Act (including the Registration Statement and the Prospectus, any Preliminary Prospectus or Prospectus incorporated therein at the time filed with such Registration Statement becomes effective); the Commission, complied or will comply, in all respects to term "Registration Statement" includes both the requirements of the Exchange Act.
(d) Other than the Original Registration Statement and any Rule 462(b) Registration Statement; the term "Preliminary Prospectus, the Company " means each prospectus subject to completion filed with such registration statement or any amendment thereto (including its agents and representativesthe prospectus subject to completion, other than the Agents in their capacity as such) has not preparedif any, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained included in the Registration Statement or any amendment or supplement thereto at the time it was or is declared effective); the term "Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to" means:
Appears in 1 contract
Sources: Underwriting Agreement (Philips International Realty Corp)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to to, and agree with, the Agent that as Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement, and may have filed an amendment or amendments thereto, on Form S-11 (No. 333-09411), for the registration of the date hereofShares under the Securities Act of 1933, as amended (the "Act"). Such registration statement, including the prospectus, financial statements and schedules, exhibits and all other documents filed as a part thereof, as amended at the time of each Representation Date (as defined below) on which a certificate is required effectiveness of the registration statement, including any information deemed to be delivered pursuant to Section 7(q), and a part thereof as of the time of each sale of any Placement Shares effectiveness pursuant to this Agreement:
paragraph (ab) No order preventing of Rule 430A or suspending the use Rule 434 of the Prospectus has been issued Rules and Regulations of the Commission under the Act (the "Regulations"), is herein called the "Registration Statement." Any registration statement filed by the Commission, Company pursuant to Rule 462(b) under the Regulations is herein called the "Rule 462(b) Registration Statement," and from and after the Prospectus, as of its date and as time of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement such filing of a material fact or omit to state a material fact necessary in order to make Rule 462(b) Registration Statement the statements thereinterm "Registration Statement" shall include the Rule 462(b) Registration Statement. The prospectus, in the light form first used by the Underwriters to confirm sales of the circumstances under which they were madeShares, not misleadingis herein called the "Prospectus"; provided, however, if the Company has elected to rely upon Rule 434 under the Regulations (and has obtained the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness Representatives' consent thereto on behalf 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectusseveral Underwriters), the term "Prospectus" shall mean the Company's prospectus subject to completion (Ceach, a "preliminary prospectus") at dated September 9, 1996 (such preliminary prospectus herein called the time "Rule 434 preliminary prospectus") together with the applicable term sheet (the "Term Sheet") prepared and filed by the Company or any person acting on its behalf (within with the meaning, for this clause only, of Rule 163(cCommission under Rules 434 and 424(b) under the Securities Act) made any offer relating Regulations and provided, further, that all references in this Agreement to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make shall mean the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stockapplicable Term Sheet. Additionally, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits all references in this Agreement to the Registration Statement other than those that are so filed.
(hStatement, the Rule 462(b) To Registration Statement, a preliminary prospectus, the knowledge of the Company Prospectus and the Operating PartnershipTerm Sheet, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company amendments or supplements to any of the Company’s officersforegoing, directors, or 5% or greater security holders or shall be deemed to include any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description copy thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tofiled
Appears in 1 contract
Sources: Underwriting Agreement (Glenborough Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that each Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending The Company and the Operating Partnership meet the requirements for use of Form S-3, and the Prospectus Registration Statement has been issued declared effective by the Commission.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus and, if applicable, any Term Sheet to the Prospectus, as of its date and as of the date of any amendment or supplement hereof and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commissioneffective, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and when any post-effective amendment theretoto the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Preliminary Prospectus (as hereinafter defined), the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriters and Underwriters' counsel).
(c) Each 462(b) Registration Statement, if any, will comply when so filed in all material respects with all applicable provisions of the Act; will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty Prospectus delivered to the Underwriters for use in connection with respect the offering of Shares will, at the time of such delivery, be identical to any Agent Information. the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to Underwriters specifically for inclusion in the Registration Statement or Prospectus or any Agent Informationamendment or supplement thereto.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualificationMaryland. Each of the Operating Partnership, except to First Industrial Financing Partnership, L.P. (the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise"Financing Partnership"), earningsFirst Industrial Securities, propertiesL.P. ("Securities, managementL.P."), results of operations or prospects of First Industrial Mortgage Partnership, L.P. (the Company"Mortgage Partnership"), First Industrial Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P. ("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the Operating Partnership, the Operating Partnership Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein FIP are referred to collectively herein as a “Material Adverse Effect”).
(jthe "Partnership Subsidiaries") The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"), First Industrial Management Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively herein as the State "Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under and by virtue of Delaware has the laws of its jurisdiction of organization. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIDSG is a wholly-owned subsidiary of the Company and is the sole general partner of DSG. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Company and each of the Subsidiaries has, and at the Closing Date and, if later, an Option Closing Date, will have, full corporate or partnership power and authority to own or leaseauthority, as the case may be, its property to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its property and conduct its business in which it engages or proposes to engage as described in the Registration Statement and or the Prospectus and is the transactions contemplated hereby and thereby. The Company and each of the Corporate Subsidiaries is, and at the Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, except where failure to obtain such qualifications or registration will not have a material adverse effect on (i) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Company and its Subsidiaries, taken as whole or on the 430 in service properties owned, directly or indirectly, by the Company as of March 31, 1997 (the "Properties"), (ii) the issuance, validity or enforceability of the shares or the enforceability of the Deposit Agreement or (iii) the consummation of any of the transactions contemplated by this Agreement and/or the Deposit Agreement (a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Each of the Partnership Subsidiaries is, and at the Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualifications or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would registration will not have a Material Adverse Effect, which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. All Complete and correct copies of the issued shares articles of capital stock, units of limited partnership interest incorporation and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and nonby-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements charter documents, partnership agreements and other organizational documents of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock Subsidiaries and all amendments thereto as have been duly authorized and, when issued upon conversion of requested by the Series D Preferred Stock in accordance with Underwriters or their counsel have been delivered to the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toUnderwriters or their counsel.
Appears in 1 contract
Sources: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to and agree with each of the Agent that Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Shares; no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge, are contemplated by the Commission; the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act;
(b) the Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at the time of purchase, each additional time of purchase, if any, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, will comply, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the Effective Time, 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; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as in all material respects with the requirements of the Act; at no time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending during the use of period that begins on the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any amendment Preliminary Prospectus, as then amended or supplement supplemented, 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, and on at no time during such period did or will any Settlement DatePreliminary Prospectus, did notas then amended or supplemented, does not and will not contain together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus will comply, as of its applicable effective date, the date that it is filed with the Commission, the time of purchase, each additional time of purchase, if any, and at each deemed effective date all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with respect to Agents pursuant to Rule 430B(f)(2172 under the Act or any similar rule) and at each Settlement Datein connection with any sale of Shares, complied and will comply in all material respects respects, with the Securities requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did not and or will not contain any the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and as of at no time during the period that begins on the date of the such Permitted Free Writing Prospectus and ends at the time of purchase did or will any amendment or supplement thereto, will not contain any Permitted Free Writing Prospectus 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; provided, however, that the Company and the Operating Partnership make makes no representation and or warranty in this Section 3(b) with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference statement contained in the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Preliminary Prospectuses and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is accompanied or preceded by the most recent Preliminary Prospectus or the Prospectus, at as the time case may be, and that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), complied the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will complysatisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), in all respects to (c) and (d) of Rule 164); the Preliminary Prospectus dated May 7, 2008 is a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, ; the Company is not disqualified, by reason of subsection (including its agents f) or (g) of Rule 164 under the Act, from using, in connection with the offer and representativessale of the Shares, other than “free writing prospectuses” (as defined in Rule 405 under the Agents in their capacity as suchAct) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 Rules 164 and 433 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 misleadingAct; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Shares contemplated hereby is solely the property of the Company; the Company has caused there to be made available at least one version of a “bona fide electronic road show” (as defined in Rule 433 under the Act) in a manner that, pursuant to Rule 433(d)(8)(ii) under the Act, causes the Company not to be required, pursuant to Rule 433(d) under the Act, to file, with the Commission, any Electronic Road Show;
(d) the consolidated financial statements of the Company, together with the related schedules and notes thereto, set forth or included in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, are accurate in all material respects and fairly present the financial condition of the Company as of the dates indicated and the results of operations, changes in financial position, stockholders’ equity and cash flows for the periods therein specified are in conformity with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise stated therein). The selected financial and statistical data included in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a basis consistent with the financial statements presented therein. The Company and, to the Company’s knowledge, the Subsidiaries (as defined below) do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not disclosed in the Registration Statement and the Prospectus.. No other financial statements are required to be set forth in the Registration Statement, Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, under the Act;
(e) the Prospectus delivered to the Underwriters for use in connection with this offering will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, formed and incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus Maryland and is duly qualified to transact do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or assets or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing qualify would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earningsassets, properties, managementprospects, financial condition or results of operations or prospects of the Company, the Operating Partnership Company and the Subsidiaries (as hereinafter defined), taken as a whole, or whole (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership and has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full corporate power and authority necessary to own or leaseown, as the case may behold, its property and to lease and/or operate its property assets and properties, to conduct its business as described in the Registration Statement and Statement, the Preliminary Prospectuses, the Prospectus and is duly qualified the Permitted Free Writing Prospectuses, if any, and to transact business enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, and the Company is in good standing as a foreign limited partnership compliance in each jurisdiction all material respects with the laws, orders, rules, regulations and directives issued or administered by any jurisdictions in which the conduct of its business it owns or its ownership leases property or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.conducts business;
(kg) Each the Company has no “significant subsidiarysubsidiaries” (as such term is defined in Rule 1-02(w) 02 of Regulation S-XX promulgated under the Act) of the Company other than the Operating Partnership Partnership, MFR Asset (each a “Subsidiary” TRS), Inc., MFR Asset I, LLC and collectively MFR Asset II, LLC (collectively, the “Subsidiaries”) ); except as described in the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company, directly or indirectly, owns all of the issued and outstanding capital stock of or other interests in the Subsidiaries; other than the capital stock of and other equity interests in the Subsidiaries, the Company does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity; complete and correct copies of the charters and of the bylaws or other formation documents of the Company and each Subsidiary and all amendments thereto have been made available to you and/or your counsel and, except as set forth in the exhibits to the Registration Statement, no changes therein will be made on or after the date hereof through and including the time of purchase or, if later, any additional time of purchase; to the Company’s knowledge, each Subsidiary has been duly organized, formed and incorporated or organized and is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its incorporation, formation or organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact do business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, company in each jurisdiction in which where the ownership or leasing of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All Effect and, to the Company’s knowledge, each Subsidiary has full corporate, partnership or limited liability power and authority, as applicable, necessary to own, hold, lease and/or operate its assets and properties and to conduct its business as described in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, and, to the Company’s knowledge, each Subsidiary is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by jurisdictions in which it owns or leases property or conducts business; to the Company’s knowledge, all of the issued shares of capital stockoutstanding equity interests, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership Subsidiaries have been duly authorized, are authorized and validly issued, fully paid and non-assessable, have been issued in compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar rights. Except as disclosed in the Registration Statement right and the Prospectusare not subject to any security interest, the Company other encumbrance or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary adverse claims; to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectusknowledge, no options, warrants or other rights to purchase, agreements or other obligations to issue, issue or other rights to convert any obligations obligation into shares of capital stock or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership Subsidiaries are outstanding.
(s) Except outstanding except as described in the Registration Statement Statement, the Preliminary Prospectus 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, ;
(h) All of the outstanding shares of capital stock and any other equity interests of each subsidiary of the Operating Partnership are directly owned by the Operating Partnership;
(i) Neither the Company nor, to the Company’s knowledge, any of the Subsidiaries, is in breach or violation of or ownership interests in default under (nor has any event occurred which with notice, lapse of time or both would result in any breach or violation of or constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (i) its respective charter, bylaws, certificate of formation, partnership agreement or limited liability company agreement, as the case may be, or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company are outstanding.
or any of the Subsidiaries is a party or by which any of them or any of their properties may be bound or affected the effect of which breach, violation or default under clause (tii) The Placement Shares could reasonably be expected to be sold by result in a Material Adverse Effect, and the Company have been duly authorized andexecution, when issued delivery and delivered against payment therefore in accordance with the terms performance of this Agreement, will be validly issued, fully paid the issuance and non-assessable, sale of the Shares and the issuance consummation of such Placement Shares the transactions contemplated hereby will not be subject to conflict with, result in any breach or in violation of or constitute a default under (nor constitute any preemptive event which with notice, lapse of time or similar rights. Upon payment both would result in any breach or violation of or constitute a default under) (i) the purchase price and issuance and delivery charter, bylaws, certificate of the Placement Shares to be issued and sold by the Company in accordance herewithformation, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, partnership agreement or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatementlimited liability company agreement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amendedcase may be, of the Company and or, to the requirements Company’s knowledge, any of the NYSE.
Subsidiaries, or (uii) The shares any indenture, mortgage, deed of Common Stock initially issuable upon conversion trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or, to the Company’s knowledge, any of the Series D Preferred Stock have been duly authorized andSubsidiaries is a party or by which any of them or any of their respective properties may be bound or affected, when issued upon conversion the effect of which breach, violation or default under clause (ii) could reasonably be expected to result in a Material Adverse Effect or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or, to the Company’s knowledge, any of the Series D Preferred Stock in accordance with the terms Subsidiaries (j) as of the Articles Supplementarydate of this Agreement, will be validly issued, fully paid and nonassessableas of the time of purchase, and as of the issuance additional time of such shares purchase, the Company had, has and will have, as applicable, an authorized, issued and outstanding capitalization as set forth in the sections of Common Stock will not be subject tot
Appears in 1 contract
Sources: Underwriting Agreement (MFResidential Investments, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent represent, warrant and warrant covenant to the Agent that Manager as of the date hereof, hereof and as of each Representation Date (as defined below) on which a certificate is certificates are required to be delivered pursuant to Section 7(q)8(o) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agrees with the time of each sale of any Placement Shares pursuant to this AgreementManager, as follows:
(a) No order preventing or suspending The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the Prospectus has been issued by offering of Shares contemplated hereby. At the Commissiontime of initial filing of the Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Common Stock, on the date hereof and the Prospectuson each Representation Date, as of its date each Applicable Time and as of the date of any amendment or supplement and on any each Settlement Date, did the Company was not, does is not and will not be an “ineligible issuer” (as defined in Rule 405 under the Securities Act).
(b) The Registration Statement and the Prospectus conformed, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects on the date hereof and on each Representation Date, as of each Applicable Time and as of each Settlement Date, as applicable, to the requirements of the Securities Act.
(c) The Registration Statement does not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Manager or the Forward Seller specifically for inclusion therein.
(d) Any documents incorporated by reference into the Registration Statement and the Operating Partnership make no representation and warranty Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statementsuch document was filed, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether when such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectusfiled), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply conformed in all material respects with the Securities Actrequirements of the Exchange Act and the rules and regulations thereunder, and did not any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and will not contain the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(e) The Prospectus will not, as of the its date and on each Representation Date, as of the Prospectus each Applicable Time and any amendment or supplement theretoas of each Settlement Date, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, by or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements on behalf of the Exchange ActManager or the Forward Seller specifically for inclusion therein.
(df) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than including, without limitation, any “road show” (as referred to defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in that is a free writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with prospectus under Rule 433 under the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, Act) did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eg) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the date of first use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Manager. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act.
(h) The Company was has not an “ineligible issuer” distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Securities, will not distribute any offering material in connection with the offering or sale of the Securities other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus to which the Manager has consented, which consent will not be unreasonably withheld or delayed, or that is required by applicable law or the listing maintenance requirements of the NYSE.
(i) A number of shares of Common Stock equal to the Capped Number (as defined in Rule 405the Forward Contract) as have been duly authorized and reserved for issuance upon settlement of the eligibility determination date for purposes Forward Contract and, when issued and delivered by the Company to the Forward Purchaser pursuant thereto, against payment of Rules 164 any consideration required to be paid by the Forward Purchaser pursuant to the terms of the Forward Contract, the shares of Common Stock so issued and 433 delivered will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance of such shares of Common Stock will not be subject to any preemptive or other similar rights arising by operation of law, under the Securities Act with respect to the offering articles of incorporation, bylaws or other organizational documents of the Placement Shares contemplated by Company or any one of its subsidiaries or under any agreement to which the Company or any one of its subsidiaries is a party or otherwise, except as set forth in the Registration Statement and the Prospectus.
(fj) The Placement Shares have been authorized for listing on the NYSE, subject to official notice capitalization of issuance and the Company is as set forth in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Registration Statement and the Series D Preferred Stock on Prospectus. All the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge outstanding shares of capital stock of the Company have been, and as of each Representation Date, as of each Applicable Time and as of each Settlement Date, as the case may be, will be, duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement and the Operating Partnership, threatened or contemplated, Prospectus; except as described in the Registration Statement and the Prospectus, the Company has is not received a party to or bound by any notice from the NYSE regarding the revocation outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSEcapital stock.
(gk) To the knowledge Each of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations Partnership and their subsidiaries is duly formed or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), organized and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties (“Properties”) and to operate its property and conduct its business as presently conducted and as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to so register or qualify would not, individually or in the aggregate, reasonably be so qualified or be in good standing would not (i) expected to have a material adverse effect on the assets, business, condition (financial or otherwise), earningsbusiness, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, or whole (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required Securities to be taken for sold through the due and proper authorizationManager, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby as principal or agent, or Forward Seller, as applicable, have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under and, when issued and delivered pursuant to this Agreement or the caption “Description Forward Contract against payment of Common the consideration set forth herein or therein, will be fully paid and Preferred Stock.”
(q) The Common Stock non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the Series D Preferred Stock conform issuance and will conform sale of the Securities by the Company is not subject to any preemptive, co-sale right, registration right, right of first refusal or similar rights, other than as to legal matters to the descriptions thereof contained described in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred StockProspectus.”
(rm) All of the issued and outstanding OP Units have been duly authorized for issuance by the Operating Partnership and its general partner and validly issued. The terms of the OP Units conform in all material respects to the descriptions related thereto in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus: (i) no OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any OP Units and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other securities of the Operating Partnership. Any prior offers and sales of the OP Units described in the Registration Statement and the Prospectus, have been offered and sold in transactions exempt from the registration requirements of the Securities Act, the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and blue sky laws. None of the OP Units were issued in violation of the preemptive or other similar rights of any holder of the Operating Partnership.
(n) With respect to stock options, share awards (including restricted common stock and restricted stock units), stock appreciation rights, dividend equivalent rights, performance awards, annual incentive cash awards and/or other equity-based awards (the “Equity Incentive Awards”) granted pursuant to the stock-based compensation plans of the Company and its subsidiaries, including without limitation the Company’s 2016 Long Term Incentive Plan (the “Company Stock Plans”), (i) each Equity Incentive Award intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) so qualifies, (ii) each grant of an Equity Incentive Award was duly authorized no later than the date on which the grant of such Equity Incentive Award was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Company Stock Plans, the Securities Act and all other applicable laws and regulatory rules or requirements, including the rules of the NYSE and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States applied on a consistent basis in the financial statements (including the related notes) of the Company and disclosed in filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Equity Incentive Awards prior to, or otherwise coordinating the grant of Equity Incentive Awards with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(o) There are no legal or governmental proceedings pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against the Company, the Operating Partnership or their subsidiaries or to which the Company or its subsidiaries or any of their properties are subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement thereto) but are not described as required. Except as described in the Registration Statement and the Prospectus, there are no optionsactions, warrants suits, inquiries, proceedings or investigations by or before any court or governmental or other rights regulatory or administrative agency or commission pending or, to purchasethe best knowledge of the Company and the Operating Partnership, agreements threatened, against or other obligations to issueinvolving the Company, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership or their subsidiaries, which might individually or in the aggregate reasonably be expected to have a Material Adverse Effect or prevent or adversely affect the transactions contemplated by this Agreement or the Forward Contract, nor to the knowledge of the Company and the Operating Partnership, is there any basis for any such action, suit, inquiry, proceeding or investigation. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus (“OP Units”or any amendment or supplement thereto) or other ownership interests in to be filed as an exhibit to the Operating Partnership Registration Statement that are outstanding.
(s) Except as described not described, filed or incorporated by reference in the Registration Statement 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.
(t) The Placement Shares to be sold Prospectus as required by the Company Securities Act. All such contracts to which the Company, the Operating Partnership or any of their subsidiaries is a party have been duly authorized andauthorized, when issued executed and delivered by the Company, the Operating Partnership or the applicable subsidiary, constitute valid and binding agreements of the Company, the Operating Partnership or the applicable subsidiary and are enforceable against payment therefore the Company, the Operating Partnership or the applicable subsidiary in accordance with the terms thereof, except as enforceability thereof may be limited by (i) the application of this Agreementbankruptcy, will reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be validly issuedbrought. None of the Company, fully paid and non-assessablethe Operating Partnership or the applicable subsidiary has received notice or been made aware that any other party is in breach of or default to the Company, and the issuance Operating Partnership or the applicable subsidiary under any of such Placement Shares will not be subject to contracts.
(p) None of the Company, the Operating Partnership or any of their subsidiaries is (i) in violation of (A) its articles of incorporation or bylaws, or other organizational documents, (B) any preemptive federal, state or similar rights. Upon payment of foreign law, ordinance, administrative or governmental rule or regulation applicable to the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewithCompany, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear Operating Partnership or any of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit totheir subsidiaries, or incorporated by reference in(C) any decree of any federal, state or foreign court or governmental agency or body having jurisdiction over the Company, the Registration Statement Operating Partnership or any of their subsidiaries, except, in the case of (B) and will (C), for violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; or (ii) in proper form default in any material respect in the performance of any obligation, agreement or condition contained in (A) any bond, debenture, note or any other evidence of indebtedness or (B) any agreement, contract, indenture, lease or other instrument (each of (A) and will comply in all material respects with all applicable legal requirements(B), an “Existing Instrument”) to which the Company, the requirements Operating Partnership or any of the Articles their subsidiaries is a party or by which any of Amendment and Restatementtheir properties may be bound, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of except for such shares of Common Stock will not be subject todefaults which w
Appears in 1 contract
Sources: Equity Distribution Agreement (NexPoint Residential Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to to, and agree with, the Agent that as of Underwriters that:
2 (a) The Company has filed with the date hereof, as of each Representation Date Securities and Exchange Commission (as defined belowthe "Commission") registration statements on which a certificate is required to be delivered pursuant to Section 7(qForm S-3 (Nos. 333-26815 and 333-40959), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commissionamendments thereto, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statement, (B) at the time of the most recent amendment thereto related preliminary prospectuses for the purposes of complying with Section 10(a)(3) of registration under the Securities Act of 1933, as amended (whether such amendment was the "Securities Act") of preferred stock (including the Shares, "Preferred Stock"), common stock, par value $0.001 per share ("Common Stock") and warrants to purchase shares of Preferred Stock or Common Stock, each of which registration statements, as so amended, has been declared effective by post-effective amendment, incorporated report the Commission and copies of which have heretofore been delivered to the Underwriters. Such registration statements (and any registration statement increasing the size of the offering (a "Rule 462(b) Registration Statement") filed pursuant to Section 13 or 15(d) of the Exchange 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(c462(b) under the Securities Act) made any offer relating ), in the respective forms in which they were declared effective, as amended, including all exhibits thereto and the documents incorporated or deemed to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of be incorporated by reference therein through the date hereof, are each hereinafter referred to as a "Registration Statement" and are collectively referred to as the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The "Registration Statements". Registration Statement No. 333-40959 is an “automatic shelf registration statement” (herein referred to as defined in the "Second Registration Statement". Other than a Rule 405462(b) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement Statement, which became effective upon filing filing, no other document with respect to the Registration Statements or document incorporated by reference therein has heretofore been filed with the CommissionCommission (other than prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act, each in the form heretofore delivered to the Representatives). No stop order suspending the effectiveness of the either Registration Statement or the Rule 462(b) Registration Statement, if any, has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany's knowledge, threatened by the Commission. The Registration Statement, as Company proposes to file with the Commission pursuant to Rule 424(b) of the date rules and regulations of the Commission under the Securities Act (the "Securities Act Regulations") the Prospectus Supplement (as defined in Section 4(j) hereof) relating to the Shares and the Company's base prospectus dated December 18, 1997 (the "Base Prospectus"), and any post-effective amendment thereto, as has previously advised the Underwriters of its applicable effective date all further information (financial and at each deemed effective date other) with respect to Agents the Company set forth therein. The Base Prospectus together with the Prospectus Supplement, in their respective forms on the date hereof (being the forms in which they are to be filed with the Commission pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a424(b) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required therebyRegulations), and did not, does not and will not include any information that conflicted, conflicts including all documents incorporated or will conflict with the information contained in the Registration Statement or the Prospectus, including any document deemed to be incorporated by reference therein through the date hereof, are hereinafter referred to as the "Prospectus," except that has not been superseded if any revised prospectus or modified and, when taken together prospectus supplement shall be provided to the Underwriters by the Company for use in connection with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not offering and will not contain 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 sale of the circumstances under Shares which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice differs from the NYSE regarding the revocation of Prospectus (whether or not such listing revised prospectus or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are prospectus supplement is required to be filed as exhibits by the Company pursuant to the Registration Statement other than those that are so filed.
(hRule 424(b) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”Securities Act Regulations), and (ii) the Company term "Prospectus" shall refer to such revised prospectus or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and leaseprospectus supplement, as the case may be, its property from and after the time it is first provided to operate its property the Underwriters for such use. As used herein, the term "date of the Prospectus" shall be deemed to refer to the date of the Prospectus Supplement. Any preliminary prospectus or prospectus subject to completion included in the Second Registration Statement or filed with the Commission pursuant to Rule 424 under the Securities Act is hereafter called a "Preliminary Prospectus." Unless the context otherwise requires, all references in this Agreement to documents, financial statements and conduct its business as schedules and other information which is "contained", "included", "stated", "described in" or "referred to" in the Registration Statement and Statements or the Prospectus (and all other references of like import) shall be deemed to mean and include all such documents, financial statements and schedules and other information which is duly qualified to transact business and or is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure deemed to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described incorporated by reference in the foregoing clauses (i) Registration Statements or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or leaseProspectus, as the case may be, its property and all references in this Agreement to operate its property amendments or supplements to the Registration Statements or the Prospectus shall be deemed to mean and conduct its business as described include the filing of any document under the Securities Exchange Act of 1934 (the "Exchange Act") after the date of this Agreement which is or is deemed to be incorporated by reference in the Registration Statement and Statements or the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or leaseProspectus, as the case may be. Additionally, its property and all references in this Agreement to operate its property and conduct its business as described in the Registration Statement and Statements, the Rule 462(b) Registration Statement, a Preliminary Prospectus, the Base Prospectus, the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement Supplement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly any amendments or indirectly, all supplements to any of the issued and outstanding shares of capital stockforegoing, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of shall be deemed to include any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record copy thereof filed with the Maryland State Department of Assessments Commission pursuant to its Electronic Data Gathering, Analysis and Taxation Retrieval System (the “SDAT”"EDGA▇").
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (Glenborough Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, the Underwriters as set forth below in this Section 1:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the Agent that knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(b) The Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act”). The documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(c) The Registration Statement, as of each Representation Date effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as defined below) on which of the date hereof and at the Closing Time, did not, and does not contain an untrue statement of a certificate is material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of the applicable filing date, the date hereof and at the Closing Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representative to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 7(q8(b) hereof); the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) As of 4:30 p.m. (Eastern time) on April 8, 2022 (the “Initial Sale Time”), the Disclosure Package did not, and as of at the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending Notes and at the use of Closing Time, the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did Disclosure Package will not, does not and will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statementissue date or date of first use and at all subsequent times through the Initial Sale Time, (B) each Issuer Free Writing Prospectus did not, and at the time of the most recent amendment thereto for the purposes each sale of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) Notes and at the time the Company or any person acting on its behalf (within the meaningClosing Time, for this clause onlyeach such Issuer Free Writing Prospectus will not, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is contain an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporated, statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representative to be incorporated, by reference the Company expressly for use therein (that information being limited to that described in the Registration Statement last sentence of the first paragraph of Section 8(b) hereof).
(e) In connection with this offering, the Company has not offered and will not offer the Notes in a manner in violation of the Securities Act; and the Company has not distributed and will not distribute any offering material in connection with the offer and sale of the Notes except for the Preliminary Prospectus, the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) or the Registration Statement or for communications satisfying the requirements of the Securities Act or Rule 134 under the Securities Act or Act.
(iif) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with (including the Securities Act (to the extent required therebyFinal Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(eg) The Company was not an “ineligible issuer” (as defined is eligible to use Free Writing Prospectuses in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and Act; any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the rules Commission in accordance with the requirements of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Securities Act; and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and each Free Writing Prospectus that the Company has not received any notice from filed, or is required to file, pursuant to Rule 433(d) under the NYSE regarding Securities Act or that was prepared by or on behalf of or used by the revocation of such listing Company complies or otherwise regarding will comply in all material respects with the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge requirements of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filedSecurities Act.
(h) To Except for the knowledge Issuer Free Writing Prospectuses identified in Schedule II hereto, the information set forth on Exhibit A and any electronic road show relating to the offering and sale of the Notes contemplated herein, the Company has not prepared, used or referred to, and will not, without the Operating Partnership, there are no affiliations or associations between (i) any member prior consent of the Financial Industry Regulatory AuthorityRepresentative, Inc. (“FINRA”)prepare, and (ii) the Company use or refer to, any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Free Writing Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporatedPreliminary Prospectus, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriters for use in connection with the public offering of the Notes contemplated herein have been and is in good standing as a foreign corporation in each jurisdiction in which will be identical to the conduct versions of its business or its ownership or leasing of property requires such qualificationdocuments transmitted to the Commission for filing via E▇▇▇▇, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects permitted by Regulation S-T of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Securities Act.
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in Company filed the Registration Statement and with the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCommission before using any Issuer Free Writing Prospectus.
(k) Each “significant subsidiary” The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus.
(as defined in Rule 1-02(wl) of Regulation S-X) of the Company There are no persons with registration or other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organizedsimilar rights to have any equity or debt securities, is validly existing as a corporationincluding securities which are convertible into or exchangeable for equity securities, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority registered pursuant to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned otherwise registered by the Company or the Operating Partnership directly under the Securities Act, all of which registration or indirectlysimilar rights are fairly summarized in the Registration Statement, free the Prospectus and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly takenDisclosure Package.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company as of December 31, 2021 is as set forth under the heading “Capitalization” in the Registration Statement Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, agreements or employee benefit plans or dividend reinvestment the exercise of convertible or stock purchase plans exchangeable securities or options, in each case referred to in the Registration Statement Statement, the Disclosure Package and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized All of the issued and outstanding shares of capital stock of the Company conforms have been duly authorized and will validly issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and the requirements of the New York Stock Exchange, Inc. (the “NYSE”) and were not issued in violation of any preemptive, right of first refusal, or similar right. Attached as Schedule III is a true and complete list of each entity (other than a securitization entity) in which the Company has a direct or indirect majority equity or voting interest that is consolidated with the Company for financial reporting purposes under U.S. generally accepted accounting principles (each, a “Subsidiary” and, together, “Subsidiaries”). All of the issued and outstanding equity interests of each Subsidiary that is a significant subsidiary within the meaning of Regulation S-X (each, a “Significant Subsidiary” and, together, the “Significant Subsidiaries”) have been duly and validly authorized and issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and, if any of its securities are listed on the NYSE, the requirements of the NYSE, were not issued in violation of any preemptive, right of first refusal, or similar right and, except as set forth in the Disclosure Package and the Prospectus, or otherwise specified in Schedule III, are owned, directly or indirectly, by the Company free and clear of all liens. There are no outstanding options, warrants or other rights to acquire or purchase, or instruments convertible into or exchangeable for, any equity interests of the Company or any Subsidiary, except as set forth in the Disclosure Package and the Prospectus or held by the Company or any of its Subsidiaries.
(n) Each of the Company and each Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its property and to conduct its business, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, management, financial position, results of operations or prospects of the Company and the Subsidiaries taken as a whole (a “Material Adverse Effect”) or on the performance by the Company or the Operating Partnership of its obligations under this Agreement.
(o) The Notes conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement Statement, the Prospectus and the Disclosure Package; the Indenture conforms in all material respects to the descriptions thereof contained in the Registration Statement, the Prospectus, and the Disclosure Package; and the statements in the Registration Statement, the Prospectus and the Disclosure Package under the headings “Additional U.S. Federal Income Tax Considerations” and “U.S. Federal Income Tax Considerations” fairly summarize in all material respects the legal matters therein described.
(p) The execution and delivery of, and the performance by each of the Company and the Operating Partnership of its obligations under (including the issuance and sale of the Notes and the use of proceeds from the sale of the Notes as described in Disclosure Package and the Prospectus under the caption “Description Use of Common Proceeds”), this Agreement have been duly and Preferred Stock.”
(r) Except as described in validly authorized by the Registration Statement Company and the ProspectusOperating Partnership, 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, units of partnership interest in and this Agreement has been duly executed and delivered by the Company and the Operating Partnership (“OP Units”) or other ownership interests in and, assuming due authorization, execution, delivery, validity, legally binding effect and enforceability hereof by you and thereof by the counterparties thereto, this Agreement constitutes the valid and legally binding agreements of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership are outstandingin accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s and the Operating Partnership’s obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law. The execution and delivery of, and the performance by, the Company of its obligations under the Indenture have been duly and validly authorized by the Company, and the Indenture constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(s) Except as described in the Registration Statement 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.
(tq) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares Notes to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued, authenticated and delivered against payment therefor in accordance herewithwith this Agreement and the Indenture, the purchasers thereof will receive good, constitute valid and marketable title legally binding obligations of the Company, except as may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to such Placement Sharesor affecting creditors’ rights generally and by general equitable principles, free and clear regardless whether enforcement is considered in a proceeding in equity or at law, that may limit the right to specific enforcement of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement remedies and will be in proper the form contemplated by, and will comply in all material respects with all applicable legal requirementsentitled to the benefits of, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEIndenture.
(ur) The shares of Common Stock initially issuable upon conversion Management Agreement pursuant to which the Manager acts as the manager and adviser of the Series D Preferred Stock have Company, the Operating Partnership and their respective Subsidiaries, has been duly authorized andauthorized, when issued upon conversion executed and delivered by each of the Series D Preferred Stock Company, the Operating Partnership and their respective Subsidiaries, as applicable, and constitutes a valid and binding agreement of each of the Company, the Operating Partnership and their respective Subsidiaries enforceable in accordance with its terms, except to the terms extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles; and the OP Agreement has been duly authorized, executed and delivered by the Operating Partnership and constitutes a valid and binding agreement of the Articles SupplementaryOperating Partnership enforceable in accordance with its terms, will except to the extent that enforcement thereof may be validly issuedlimited by bankruptcy, fully paid and nonassessableinsolvency, and the issuance reorganization or other laws affecting enforcement of such shares of Common Stock will not creditors’ rights or by general equitable principles.
(s) The note to be subject toissued by
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly Partnership each severally represents and severally, represent and warrant warrants to the Agent that Underwriters as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(a) No A registration statement on Form S-3 (File No. 333-113948) with respect to the Shares and certain other securities has been prepared by the Company and filed with the Securities and Exchange Commission (the “Commission”) in conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations (the “Rules and Regulations”) of the Commission and has been declared effective thereunder. Such registration statement, as amended as of the date of this Agreement, is hereinafter referred to as the “Registration Statement,” and the prospectus included in such Registration Statement, as supplemented to reflect the terms of the offering of the Shares, as first filed with the Commission pursuant to and in accordance with Rule 424(b) (“Rule 424(b)”) under the Act, including all material incorporated by reference therein, is hereinafter referred to as the “Prospectus.” The Company and the transactions contemplated by this Agreement meet the requirements and comply with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been delivered by the Company to you. Any reference herein to the Registration Statement or to the Prospectus or to any amendment or supplement to any of the foregoing documents shall be deemed to refer to and include any documents incorporated by reference therein, and, in the case of any reference herein to any Prospectus, also shall be deemed to include any documents incorporated by reference therein, and any supplements or amendments thereto, filed with the Commission after the date of filing of the Prospectus under Rules 424(b) or 430A, and prior to the termination of the offering of the Shares by the Underwriters.
(b) The Company 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, with all requisite trust power and authority to own or lease its properties and conduct its business as described in the Registration Statement. Each of the subsidiaries of the Company as listed on Schedule II hereto (collectively, the “Subsidiaries”) has been duly organized and is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, with all requisite corporate, limited partnership or limited liability company power and authority, as the case may be, to own or lease its properties and conduct its business as described in the Registration Statement. The Subsidiaries are the only subsidiaries, direct or indirect, of the Company. The Company and each of the Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification. The outstanding shares of capital stock of each of the Subsidiaries that is a corporation, the outstanding partnership interests of each of the Subsidiaries that is a limited partnership and the outstanding limited liability company interests of each of the Subsidiaries that is a limited liability company have been duly authorized and validly issued, are fully paid and non-assessable and, to the extent set forth in Schedule II hereto, are owned by the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock, partnership interests, limited liability company interests or other ownership interests in the Subsidiaries are outstanding.
(c) The outstanding Common Shares of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the Company have been duly authorized and when the Articles Supplementary to the Articles of Amendment and Restatement of Declaration of Trust of the Company for the Preferred Shares (the “Articles Supplementary”) are filed with the Maryland State Department of Assessments and Taxation and the Shares are issued and paid for as contemplated herein, the Shares will be validly issued, fully paid and non-assessable and no preemptive rights or similar rights exist with respect to any of the Shares or the issue and sale thereof which have not been waived; the Conversion Shares to be issued by the Company, upon issue or exercise in accordance with the terms of the Preferred Shares, have been duly authorized and if issued as contemplated herein will be validly issued, fully paid and non-assessable and no preemptive rights or similar rights exist with respect to any of the Conversion Shares or the issue thereof which have not been waived. The Company has duly reserved a sufficient number of Common Shares for issuance upon exchange of outstanding units of limited partnership of the Operating Partnership (the “OP Units”) in accordance with the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended to date (the “Operating Partnership Agreement”). Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement nor the issue of the Conversion Shares in accordance with the terms of the Preferred Shares gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any Preferred Shares or Common Shares, as applicable.
(d) The outstanding OP Units have been duly authorized and validly issued and are fully paid and non-assessable. The OP Units issued and sold in connection with the acquisition of properties currently under contract to be acquired have been and will be offered, issued and sold in compliance with all applicable laws (including, without limitation, federal and state securities laws).
(e) The information set forth under the caption “Capitalization” in the Prospectus is true and correct. All of the Shares conform and all of the Conversion Shares, if issued, will conform to the descriptions thereof contained in the Registration Statement. The form of certificates for the Shares conforms and the form of certificates for the Conversion Shares, if issued, will conform to the law of the jurisdiction of the Company’s organization.
(f) The Commission has not issued an order preventing or suspending the effectiveness of the Registration Statement or the use of any Prospectus relating to the proposed offering of the Shares nor instituted proceedings for that purpose. The Registration Statement contains, and the Prospectus has been issued and any amendments or supplements thereto will contain, all statements which are required to be stated therein by, and will conform to, the requirements of the Act and the Rules and Regulations. The documents incorporated, or to be incorporated, by reference in the Prospectus, at the time filed with the Commission, conformed or will conform, in all respects to the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the Act, as applicable, and the Prospectus, as of its date rules and as regulations of the Commission thereunder. On the effective date of any amendment or supplement and on any Settlement Datethe Registration Statement, the Registration Statement did not, does not and will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption date of Rule 163 under the Securities Actthis Agreement, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply Prospectus conform in all material respects with to the Securities Actrequirements of the Act and the Rules and Regulations, and did not and will not contain neither the Registration Statement nor the Prospectus include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 neither the Company nor the Operating Partnership makes any representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company by the Underwriters, specifically for use in the preparation thereof.
(g) There are no contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus which are not so filed, incorporated by reference or described as required.
(h) The consolidated financial statements of the Company and the Operating Partnership make no representation Subsidiaries, together with related notes and warranty with respect to any Agent Information. The documents incorporated, schedules as set forth or to be incorporated, incorporated by reference in the Registration Statement and the Prospectus, present fairly the financial position and the results of operations and cash flows of the Company and the consolidated Subsidiaries, at the time filed indicated dates and for the indicated periods. Such financial statements and related schedules have been prepared in accordance with generally accepted principles of accounting, consistently applied throughout the Commissionperiods involved, complied except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary financial and statistical data included or will comply, incorporated by reference in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, Prospectus present fairly the Company (including its agents information shown therein and representatives, other than such data have been compiled on a basis consistent with the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to financial statements presented therein and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause the books and records of the company.
(i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) Deloitte & Touche LLP, who have audited certain of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects financial statements filed with the Securities Act (to the extent required thereby)Commission as part of, and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified andin, when taken together with the Prospectus accompanyingRegistration Statement, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make are independent public accountants as required by the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company Act and the Operating Partnership make no representation Rules and warranty with respect to any Agent InformationRegulations.
(ej) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSEThere is no action, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSEsuit, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits claim or proceedings proceeding pending or, to the knowledge of the Company and or the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) against the Company or any of the Company’s officers, directors, Subsidiaries before any court or 5% administrative agency or greater security holders otherwise which if determined adversely to the Company or any beneficial owner of its Subsidiaries could reasonably be expected to result in any material adverse change in the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date Company and of the ProspectusSubsidiaries taken as a whole or prevent the consummation of the transactions contemplated hereby, except as has been disclosed to set forth in the Representatives in writingRegistration Statement.
(ik) The Company has been duly incorporatedand the Subsidiaries have good and marketable title in fee simple to all the real properties, is validly existing as a corporation or any part thereof, owned by them (collectively, and with all buildings, structures and other improvements located thereon and all easements, rights and other appurtenances thereto, the “Properties”) and good and marketable title to all the other properties and assets reflected in good standing under the laws consolidated financial statements hereinabove described or described in the Registration Statement, subject to no lien, security interest, mortgage, pledge, charge, claim, restriction or encumbrance of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as any kind except those reflected in such financial statements or described in the Registration Statement or which are not material in amount or which do not materially impair the use of such Property for retail shopping center purposes; all liens, security interests, mortgages, pledges, charges, claims, restrictions or encumbrances on or affecting the properties and assets of the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which Company or any of the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent Subsidiaries that the failure are required to be so qualified disclosed in the Registration Statement are disclosed therein or be in good standing documents incorporated by reference therein; neither the Company nor the Operating Partnership knows of any violation of any municipal, state or federal law, rule or regulation (including those pertaining to environmental matters) concerning the Properties which would not (i) have a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole; each of the Properties complies with all applicable zoning laws, ordinances, regulations and deed restrictions or other covenants in all material respects and, if and to the extent there is a failure to comply, such failure does not result in a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole and will not result in a forfeiture or reversion of title; none of the Company nor any Subsidiary 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 nor any Subsidiary knows of any such condemnation or zoning change which is threatened and which if consummated would have a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole; no lessee of any portion of any of the Properties is in default under any of the leases governing such Properties and there is no event which, but for the passage of time or the giving of notice or both, would constitute a default under any of such leases, except such defaults as are described in the Registration Statement or that would not have a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole; and the Company and the Subsidiaries occupy their leased properties under valid and binding leases.
(l) The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and have paid all taxes indicated by such returns and all assessments, fines and penalties levied against them or any of them to the extent that any of the foregoing has become due, except for any such assessment, fine or penalty that is currently being contested in good faith and which, if material, is described in the Registration Statement. All tax liabilities have been adequately provided for in the financial statements of the Company, and the Company does not know of any actual or proposed additional material tax assessments except as described in the Registration Statement.
(m) Since the respective dates as of which information is given in the Registration Statement, as it may be amended or supplemented, (A) there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership Company and the its Subsidiaries (as hereinafter defined), taken as a whole, whether or not occurring in the ordinary course of business, (iiB) prevent there has not been any material transaction entered into or materially interfere with consummation any material transaction that is probable of being entered into by the Company or the Subsidiaries, other than transactions contemplated hereby (in the occurrence ordinary course of any such effect, prevention, interference or result business and changes and transactions described in the foregoing clauses Registration Statement, as it may be amended or supplemented, (iC) no material casualty loss or material condemnation or other material adverse event with respect to any of the Properties has occurred, and (iiD) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership there has been duly organizedno dividend or distribution of any kind declared, is validly existing as a limited partnership in good standing under paid or made by the laws Company on any class of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business capital stock except as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than by the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organizedor any of its Subsidiaries with respect to any class of their capital stock, is validly existing as a corporationpartnership interests, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own interests or leaseother ownership interests, as applicable. The Company and the case may be, its property and to operate its property and conduct its business as described Subsidiaries have no material contingent obligations which are not disclosed in the Company’s financial statements which are included in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly takenStatement.
(n) The Articles Supplementary to Neither the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toCompa
Appears in 1 contract
Sources: Underwriting Agreement (Ramco Gershenson Properties Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as to, and agree with, each of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementseveral Underwriters that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and A registration statement on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty Form S-11 (File No. 333-51599) with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of Securities, including a prospectus subject to completion, has been filed by the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying Company with Section 10(a)(3) of the Securities Act and Exchange Commission (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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"Commission") under the Securities Act of 1933, as amended (the "Act"), and one or more amendments to such registration statement may have been so filed. After the execution of this Agreement, the Company will file with the Commission either (i) made any offer if such registration statement, as it may have been amended, has been declared by the Commission to be effective under the Act, either (A) if the Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined) relating to the Securities in reliance on Securities, that shall identify the exemption of Rule 163 Preliminary Prospectus (as hereinafter defined) that it supplements containing such information as is required or permitted by Rules 434, 430A and 424(b) under the Securities Act or (B) if the Company does not rely on Rule 434 under the Act, a prospectus in the form most recently included in an amendment to such registration statement (or, if no such amendment shall have been filed, in such registration statement), with such changes or insertions as are required by Rule 430A under the Act or permitted by Rule 424(b) under the Act, and in the case of either clause (Di)(A) or (i)(B) of this sentence as have been provided to and approved by the Representatives prior to the execution of this Agreement, or (ii) if such registration statement, as it may have been amended, has not been declared by the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 Commission to be effective under the Securities Act (“Rule 405”)).
(c) The Registration Statement is Act, an “automatic shelf amendment to such registration statement” (as defined in Rule 405) , including a form of prospectus, a copy of which amendment has been furnished to and the Securities have been and remain eligible for registration approved by the Company on such automatic shelf registration statementRepresentatives prior to the execution of this Agreement. The Registration Statement became Company may also file a related registration statement with the Commission pursuant to Rule 462(b) under the Act for the purpose of registering certain additional Securities, which registration shall be effective upon filing with the Commission. No order suspending As used in this Agreement, the effectiveness of term "Original Registration Statement" means the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related registration statement initially filed relating to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementSecurities, as of amended at the date hereoftime when it was or is declared effective, including all financial schedules and exhibits thereto and including any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents information omitted therefrom pursuant to Rule 430B(f)(2) 430A under the Act and at each Settlement Date, complied and will comply included in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii; the term "Rule 462(b) prevent or materially interfere Registration Statement" means any registration statement filed with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (iCommission pursuant to Rule 462(b) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in Act (including the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(whereinafter defined) of Regulation S-X) of and any Preliminary Prospectus or Prospectus incorporated therein at the Company other than time such Registration Statement becomes effective); the Operating Partnership (each a “Subsidiary” and collectively term "Registration Statement" includes both the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Original Registration Statement and any Rule 462(b) Registration Statement; the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in term "Preliminary Prospectus" means each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be prospectus subject to
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that each Underwriter as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:follows.
(a) No order preventing or suspending The Company meets the requirements for use of Form S-3 under the Securities Act. The Prospectus has been issued by or will be so prepared and will be filed pursuant to Rule 424(b) of the Commission, Securities Act on or before the second business day following the date of this Agreement. Copies of the Registration Statement and the Prospectus, as of its date any such amendments or supplements and as of all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement (including one fully executed copy of the Registration Statement and each amendment thereto for the Underwriters) have been delivered or made available through ▇▇▇▇▇ to the Underwriters and their counsel.
(b) The Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and files all reports required by the Exchange Act or the Exchange Act Regulations with the Commission on the ▇▇▇▇▇ system. The documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement thereto, when they became or become effective under the Securities Act or were or are filed with the Commission under the Securities Act or the Exchange Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and on the Exchange Act, as applicable.
(c) The Company has an authorized capitalization as set forth in the Prospectus. The outstanding shares of capital stock, the partnership interests, membership interests or other equity interests, as the case may be, of the Company and each “significant subsidiary” of the Company (as such term is defined in Rule 1-02(w) of Regulation S-X promulgated under the Securities Act), including the Operating Partnership (each, a “Subsidiary”) have been duly and validly authorized and issued and are fully paid and nonassessable. All of the outstanding shares of capital stock of or the partnership interests, membership interests or other equity interests in the Subsidiaries (other than the Operating Partnership), as the case may be, are directly or indirectly owned of record and beneficially by the Company. Except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any Settlement Dateof the Subsidiaries convertible into or exchangeable for any capital stock of or partnership interests, did notmembership interests or other equity interests, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make as the statements thereincase may be, in the light Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the circumstances Company or any Subsidiary to issue any securities or obligations, any such convertible or exchangeable securities or obligations, or any such warrants, rights or options. No waivers, consents or approvals of the holders of any class or series of preferred units of partnership interest of the Operating Partnership need to be obtained in connection with the issuance and sale of the Shares, except for those that have been obtained and delivered in writing to the Representative before the date hereof.
(d) Each of the Company and the Subsidiaries (all of which Subsidiaries are named in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2004) has been duly incorporated or organized and is validly existing as a corporation, general or limited partnership, limited liability company or other legal entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation or organization with full corporate, partnership, limited liability company or other power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions described in this Agreement.
(e) Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing in each jurisdiction in which they were madethe conduct of its business or the ownership of its real property requires such qualification except for such jurisdictions in which the failure, individually or in the aggregate, to be so qualified could not misleading; providedreasonably be expected to have a material adverse effect on the assets, howeverbusiness, operations, earnings, prospects, properties or condition (financial or otherwise), of the Company and the Subsidiaries, taken as a whole (any such effect where the context so requires, is hereinafter called a “Material Adverse Effect”). Except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock, partnership interests, membership interests or other equity interests, as the case may be, from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary. Except as disclosed in the Prospectus, the Company does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, limited liability company, joint venture or other entity.
(f) The Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the Company and HHC GP Corporation, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity.
(g) Prior to completion of the offering of the Shares, the Company and a wholly-owned subsidiary of the Company will be the holder of OP Units representing an ownership interest in the Operating Partnership in the amounts described in the Prospectus, free and clear of any pledge, lien, encumbrance, security interest or other claim, and a wholly-owned subsidiary of the Company will be the sole general partner of the Operating Partnership.
(h) The Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates except where such failure to be in compliance would not have a Material Adverse Effect.
(i) Neither the Company nor any of the Subsidiaries is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its respective organizational documents, or in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, except for such breaches or defaults which could not have a Material Adverse Effect.
(j) The execution, delivery and performance of this Agreement by the Company and the Operating Partnership make no representation and warranty consummation by the Company and the Operating Partnership of the transactions contemplated by this Agreement do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with respect notice, lapse of time, or both would constitute a breach of, or default under) (i) any provision of the organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Agent Information Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any U.S. federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (as defined ii) for such breaches or defaults that could not have a Material Adverse Effect, or (B) result in Section 9(a) hereof)the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or the Subsidiaries, except for such conflicts, breaches or defaults that could not have a Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership.
(l) No approval, authorization, consent or order of or filing with any U.S. federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency having jurisdiction over the Company (each, a “Governmental Authority”) is required in connection with the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, and the Company’s sale and delivery of the Shares other than (A) At such as have been obtained, or will have been obtained at or prior to the original effectiveness Closing Time or the relevant Date of Delivery, as the Registration Statementcase may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (B) at such approvals as have been obtained or will be obtained in connection with the time approval of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) quotation of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of Shares on the Exchange Act or form of prospectus), NYSE and (C) at any necessary qualification under the time securities or “blue sky” laws of the various jurisdictions in which the Shares are being offered by the Underwriters.
(m) Each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any U.S. federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct its business as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals could not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any Subsidiary is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any U.S. federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any person acting on its behalf Subsidiary, which could have a Material Adverse Effect.
(within n) Each of the meaning, for this clause only, of Registration Statement and any Rule 163(c462(b) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 Registration Statement has become effective under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued by under the Commission, Securities Act and no proceeding proceedings for that purpose have been instituted or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated are pending or, to the knowledge of the Company and the Operating PartnershipCompany, are threatened by the Commission. , and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(o) The Registration StatementStatement complies, and the Prospectus and any further amendments or supplements to the Prospectus or the Registration Statement will, when they have become effective or are filed with the Commission, as of the date hereofcase may be, and any post-effective amendment theretocomply, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the requirements of the Securities ActAct and the Securities Act Regulations. The Registration Statement did not, and did not and any amendment thereto will not not, in each case as of the applicable effective date, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and or any amendment or supplement theretothereto does not and will not, will not as of the applicable filing date and at the Closing Time and on each Date of Delivery (if any), contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information statement contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together Prospectus in reliance upon and in conformity with the Prospectus accompanying, information concerning the Underwriters and furnished in writing by or delivered prior on behalf of the Underwriters through the Representative to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, Company expressly for use in the light Registration Statement or the Prospectus (that information being limited to that described in the penultimate sentence of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent InformationSection 9(b) hereof).
(ep) The Company was not an “ineligible issuer” (as defined Prospectus delivered to the Underwriters for use in Rule 405) as connection with this offering will be identical to the respective version of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect Prospectus created to be transmitted to the offering of Commission for filing via ▇▇▇▇▇, except to the Placement Shares contemplated extent permitted by the Registration Statement and the Prospectus.Regulation S-T.
(fq) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there There are no actions, suits suits, proceedings, inquiries or proceedings investigations pending or, to the knowledge of the Company and the Operating PartnershipCompany, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) against the Company or any of the Company’s officers, directors, or 5% or greater security holders Subsidiary or any beneficial owner of their respective officers and directors or to which the Company’s unregistered equity securities that were acquired properties, assets or rights of any such entity are subject, at law or in equity, before or by any time on Governmental Authority or after the 180th day immediately preceding the date of the Prospectusarbitral panel which could result in a judgment, except as has been disclosed to the Representatives in writingdecree, award or order having a Material Adverse Effect.
(ir) The Company has been duly incorporatedfinancial statements, is validly existing as a corporation in good standing under including the laws of the State of Marylandnotes thereto, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described included in the Registration Statement and the Prospectus present fairly the consolidated financial position of the entities to which such financial statements relate (the “Covered Entities”) as of the dates indicated and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, consolidated results of operations or prospects and changes in financial position and cash flows of the Company, Covered Entities for the Operating Partnership and the Subsidiaries (periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described applied in the foregoing clauses (i) or (ii) being herein referred to as United States and on a “Material Adverse Effect”).
(j) consistent basis during the periods involved and in accordance with Regulation S-X promulgated by the Commission. The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described financial statement schedules included in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or amounts in the aggregate, have a Material Adverse Effect.
(k) Each Prospectus under the captions “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “SubsidiaryCapitalization” and collectively “Selected Financial Data” fairly present the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power information shown therein and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance compiled on a basis consistent with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed the financial statements included in the Registration Statement and the Prospectus, the Company . No other financial statements or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary supporting schedules are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery included or incorporated by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements reference in the Registration Statement and Statement. The unaudited pro forma financial information (including the related notes) included in the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar complies as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations, and management of the Company believes that the assumptions underlying the pro forma adjustments are reasonable. Such pro forma adjustments have been properly applied to the description thereof contained historical amounts in the compilation of the information, and such information fairly presents the financial position, results of operations and other information purported to be shown therein at the respective dates and for the respective periods specified. No other pro forma financial information is required to be included in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstandingStatement.
(s) Except as described in KPMG LLP, KPMG ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, S.C. and Deloitte & Touche LLP, whose reports on the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, consolidated financial statements of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized andSubsidiaries or certain material acquisitions reported on Current Reports on Form 8-K, when issued upon conversion of the Series D Preferred Stock in accordance as applicable, are filed with the terms of Commission and incorporated by reference in the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toRegistratio
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the MPT Operating Partnership, jointly L.P., a Delaware limited partnership and severallymajority owned subsidiary of the Company (the “Operating Partnership”), represent and warrant to the Agent that as and agree with each of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementUnderwriters that:
(a) No no order preventing or suspending the use of the any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof;
(b) the Pricing Disclosure Package as of its date the Applicable Time did not, and as of the date Closing Date and as of any amendment or supplement and on any Settlement the Additional Closing Date, did as the case may be, will not, does not and will not contain 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, provided that the Company and the Operating Partnership make makes no representation and warranty with respect to any Agent Information (statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as defined such in Section 9(a7(b) hereof).;
(Ac) At the original effectiveness of other than the Registration Statement, (B) at the time of Preliminary Prospectus and the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereofProspectus, the Company was (including its agents and is a representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any “well-known seasoned issuerwritten communication” (as defined in Rule 405 under the Securities Act Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible for registration each such communication by the Company or its agents and representatives (other than a communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other written communications approved in writing in advance by the Representatives. Each such automatic shelf registration statement. The Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain 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 that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof;
(d) the Registration Statement became has been declared effective upon filing with by the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, or threatened by the Commission. The Registration Statement, ; as of the applicable effective date hereof, of the Registration Statement and any post-effective amendment thereto, as of its applicable the Registration Statement and any such post-effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, amendment complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement theretothereto and as of the Closing Date and as of the Additional Closing Date, as the case may be, the Prospectus will not contain 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, provided that the Company and the Operating Partnership make makes no representation and warranty with respect to any Agent Information. The documents incorporated, statements or omissions made in reliance upon and in conformity with information relating to be incorporated, any Underwriter furnished to the Company in writing by reference such Underwriter through the Representatives expressly for use in the Registration Statement and the ProspectusProspectus and any amendment or supplement thereto, at it being understood and agreed that the time only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof;
(e) the documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were filed with the Commission, complied or will comply, Commission conformed in all material respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information none of such documents contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit omitted 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; providedand any further documents so filed and incorporated by reference in the Registration Statement, howeverthe Prospectus or the Pricing Disclosure Package, that when such documents are filed with the Company Commission, will conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the Operating Partnership make no representation and warranty with respect to any Agent Information.statements therein, in the light of the circumstances under which they were made, not misleading;
(e) The Company was not an “ineligible issuer” (as defined in Rule 405f) as of the eligibility determination date for purposes of Rules 164 this Agreement, the Company has an authorized capitalization as set forth in the sections of the Registration Statement, the Pricing Disclosure Package and 433 under the Securities Act with respect Prospectus entitled “Capitalization” and “Description of capital stock”, and, as of the time of purchase and any additional time of purchase, as the case may be, the Company shall have an authorized capitalization as set forth in the sections of the Registration Statement, the Pricing Disclosure Package and the Prospectus entitled “Capitalization” and “Description of capital stock” (subject, in each case, to the offering issuance of shares of Stock upon exercise of stock options and warrants, or the Placement Shares contemplated by exercise, conversion or redemption of any other equity-based compensatory awards, disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Package and the Prospectus.
, the issuance of shares of Stock upon the redemption of operating partnership units in accordance with the Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, disclosed as outstanding in the Registration Statement (f) The Placement Shares excluding the exhibits thereto), the Pricing Disclosure Package and the Prospectus, the grant of options and other equity-based awards under existing stock option and other equity-based compensatory plans described in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Package and the Prospectus, and the issuance of shares of Stock, if any, resulting from the exercise of exchange rights pursuant to exchangeable senior notes issued by the Operating Partnership as described in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus); all of the issued and outstanding shares of capital stock, including the Shares, of the Company have been duly authorized and validly issued and are fully paid and non-assessable, have been issued in compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right; application has been, or will be, made to list the Shares on the New York Stock Exchange (the “NYSE”), and as of the time of purchase, the Shares shall be duly listed, and admitted and authorized for listing on the NYSEtrading, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.issuance;
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland, has the with full corporate power and authority to own own, lease and lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus Prospectus, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein;
(h) the Company is duly qualified to transact do business as a foreign corporation and is in good standing as a foreign corporation in each jurisdiction in which where the ownership or leasing of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be and in good standing would not (i) not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, managementfinancial condition, results of operations or prospects of the Company, the Operating Partnership Company and the Subsidiaries (as hereinafter defined), defined below) taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).;
(ji) The the Company has no subsidiaries (as defined under the Securities Act) other than Medical Properties Trust LLC, MPT Development Services, Inc., MPT Finance Company, LLC, MPT Operating Partnership, L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC, 8451 Pearl Street, LLC, MPT of Bucks County, LLC, MPT of Bucks County, L.P., MPT of ▇▇▇▇▇▇▇▇▇, LLC, MPT of ▇▇▇▇▇▇ Springs, LLC, MPT of Bloomington, LLC, MPT of North Cypress, LLC, MPT of North Cypress, L.P., MPT of ▇▇▇▇▇▇▇, LLC, MPT of ▇▇▇▇▇▇▇ Oaks, LLC, MPT of Dallas LTACH, LLC, MPT of Dallas LTACH, L.P., MPT of Montclair, LLC, MPT of Montclair, L.P., MPT of Portland, LLC, MPT of Detroit, LLC, MPT of Warm Springs, LLC, MPT of Warm Springs, L.P., MPT of Victoria, LLC, MPT of Victoria, L.P., MPT of Luling, LLC, MPT of Luling, L.P., MPT of Huntington Beach, LLC, MPT of Huntington Beach, L.P., MPT of West Anaheim, LLC, MPT of West Anaheim, L.P., MPT of La Palma, LLC, MPT of ▇▇ ▇▇▇▇▇, ▇.▇., MPT of Paradise Valley, LLC, MPT of Paradise Valley, L.P., MPT of Twelve Oaks, LLC, MPT of Twelve Oaks, L.P., MPT of Shasta, LLC, MPT of Shasta, L.P., MPT of Inglewood, LLC, MPT of Inglewood, L.P., MPT of Victorville, LLC, MPT of Chino, LLC, MPT of Centinela, LLC, MPT of Centinela, L.P., MPT of Southern California, LLC, MPT of Southern California, L.P., MPT West Houston Hospital, LLC, MPT West Houston Hospital, L.P., MPT West Houston MOB, LLC, MPT West Houston Hospital MOB, L.P., MPT of Anaheim, LLC, MPT of Anaheim, L.P., MPT of West Valley City, LLC, MPT of Idaho Falls, LLC, Mountain View-MPT Hospital, LLC, MPT of Poplar Bluff, LLC, MPT of Cheraw, LLC, MPT of Bennettsville, LLC, MPT of Cleveland Texas, L.P., MPT of Cleveland Texas, LLC, MPT of Bossier City, LLC, MPT of ▇▇▇▇▇▇▇, ▇.▇., MPT of ▇▇▇▇▇▇▇, LLC, MPT of Tucson, LLC, MPT of Morgantown, LLC, MPT of Fayetteville, LLC, MPT of Ft. Lauderdale, LLC, MPT of Wichita, LLC, Wichita Health Associates Limited Partnership, MPT of Petersburg, LLC, MPT of Bristol, LLC, MPT of Enfield, LLC, MPT of Newington, LLC, MPT of Providence, LLC, MPT of Springfield, LLC, MPT of Warwick, LLC, MPT of San Diego, LLC (dissolution pending), MPT of San Bernardino, LLC, MPT of Encino, L.P., MPT of Encino, LLC, MPT of Garden Grove Hospital, L.P., MPT of Garden Grove Hospital, LLC, MPT of Garden Grove MOB, L.P., MPT of Garden Grove MOB, LLC, MPT of San Dimas Hospital, L.P., MPT of San Dimas Hospital, LLC, MPT of San Dimas MOB, L.P., and MPT of San Dimas Hospital, LLC (collectively, the “Subsidiaries”); the Company owns, directly or indirectly, all of the issued and outstanding capital stock or other ownership interest of each of the Subsidiaries, other than MPT Operating Partnership, L.P., Wichita Health Associates Limited Partnership and MPT West Houston MOB, L.P., of which the Company owns, directly or indirectly, a majority of the limited partnership units; other than the capital stock or other ownership interest of the Subsidiaries, the Company does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity; complete and correct copies of the charters and the bylaws of each Subsidiary and all amendments thereto have been made available to you; each Subsidiary has been duly organized, formed and is validly existing as a corporation, limited liability company or limited partnership in good standing under the laws of the State jurisdiction of Delaware has the its incorporation or organization, with full corporate or other power and authority to own or leaseown, as the case may be, lease and operate its property properties and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (; each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and Subsidiary is duly qualified to transact do business and is in good standing as a foreign corporation, limited partnership liability company or limited liability company, as the case may be, partnership and is in good standing in each jurisdiction in which where the ownership or leasing of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be and in good standing would not not, individually or in the aggregate, have a Material Adverse Effect. All ; all of the issued outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other ownership interests of each Subsidiary of the Company or the Operating Partnership Subsidiaries have been duly authorized, are authorized and validly issued, are fully paid and non-assessable, have been issued in compliance with all applicable securities laws and laws, were not issued in violation of any preemptive right, resale right, right of first refusal or similar rights. Except as disclosed in the Registration Statement right and the Prospectus, the Company are wholly or the Operating Partnership, as the case may be, ownsmajority owned, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company subject to no security interest, other encumbrance or the Operating Partnership directly or indirectlyadverse claims, free and clear of all except where such security interests, liens, mortgages, encumbrances, pledges, other encumbrances or adverse claims would not materially affect or other defects of interfere in any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to material respect with the Company’s Amended ability to exercise control over each of its Subsidiaries; and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, issue or other rights to convert any obligations obligation into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 Subsidiaries are outstanding.;
(tj) The Placement the Shares to be sold by the Company have been duly and validly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreementtherefor as provided herein, will be duly and validly issued, fully paid and non-assessableassessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment ;
(k) the capital stock of the purchase price and issuance and delivery of Company, including the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of conforms in all Liens. The certificatesmaterial respects to each description thereof, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, contained or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toreferen
Appears in 1 contract
Sources: Underwriting Agreement (Medical Properties Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent represent, warrant and warrant covenant to the Agent that Manager as of the date hereof, hereof and as of each Representation Date (as defined below) on which a certificate is certificates are required to be delivered pursuant to Section 7(q)8(o) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agrees with the time of each sale of any Placement Shares pursuant to this AgreementManager, as follows:
(a) No order preventing or suspending The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the Prospectus offering of Securities contemplated hereby and has been issued by prepared and filed with the CommissionCommission the Registration Statement, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information is an “automatic shelf registration statement” (as defined in Section 9(aRule 405 under the Securities Act) hereofon Form S-3 (File No. 333-236876).
(A) . At the original effectiveness time of filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report reported filed pursuant to Section Sections 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the earliest time thereafter that the Company or any person acting on its behalf another offering participant made a bona fide offer (within the meaning, for this clause only, meaning of Rule 163(c164(h)(2) under the Securities Act) made any offer relating to of the Securities in reliance Common Stock, on the exemption of Rule 163 under the Securities Actdate hereof and on each Representation Date, and (D) as of the date hereofeach Applicable Time and as of each Settlement Date, the Company (i) was and or is (as the case may be) a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act Act) and (“Rule 405”)).
ii) was not, is not and will not be (cas the case may be) The Registration Statement is an “automatic shelf registration statementineligible issuer” (as defined in Rule 405405 under the Securities Act (without taking into account any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer)) in connection with the offering of the Securities pursuant to Rules 164, 405 and 433 under the Securities Act.
(b) The Registration Statement and the Prospectus, when filed and as of their respective dates, complied in all material respects with the Securities have been Act and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copies thereof delivered to the Manager and remain eligible Forward Purchaser for registration by use in connection with the Company on such automatic shelf registration statementoffer and sale of the Securities. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable at the time it became effective date and at each deemed effective date with respect to Agents the Manager and Forward Seller pursuant to Rule 430B(f)(2) of the Securities Act and at each Settlement Date, complied and will comply in all material respects with the Securities Act, Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will .
(c) The Registration Statement does not contain any 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; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Manager or the Forward Seller specifically for inclusion therein.
(d) Any documents incorporated by reference into the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(e) The Prospectus will not, as of its date and on each Representation Date, as of each Applicable Time and as of each Settlement Date, 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, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, by or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements on behalf of the Exchange ActManager or the Forward Seller specifically for inclusion therein.
(df) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than including, without limitation, any “road show” (as referred to defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in that is a free writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with prospectus under Rule 433 under the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, Act) did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eg) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the date of first use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Manager. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act.
(h) The Company was has not an “ineligible issuer” distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Securities, will not distribute any offering material in connection with the offering or sale of the Securities other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus to which the Manager has consented, which consent will not be unreasonably withheld or delayed, or that is required by applicable law or the listing maintenance requirements of the NYSE.
(i) A number of shares of Common Stock equal to the Capped Number (as defined in Rule 405the Forward Contract) as have been duly authorized and reserved for issuance upon settlement of the eligibility determination date for purposes Forward Contract and, when issued and delivered by the Company to the Forward Purchaser pursuant thereto, against payment of Rules 164 any consideration required to be paid by the Forward Purchaser pursuant to the terms of the Forward Contract, the shares of Common Stock so issued and 433 delivered will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance of such shares of Common Stock will not be subject to any preemptive or other similar rights arising by operation of law, under the Securities Act with respect to the offering articles of incorporation, bylaws or other organizational documents of the Placement Shares contemplated by Company or any one of its subsidiaries or under any agreement to which the Company or any one of its subsidiaries is a party or otherwise, except as set forth in the Registration Statement and the Prospectus.
(fj) The Placement Shares have been authorized for listing on the NYSE, subject to official notice capitalization of issuance and the Company is as set forth in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Registration Statement and the Series D Preferred Stock on Prospectus. All the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge outstanding shares of capital stock of the Company have been, and as of each Representation Date, as of each Applicable Time and as of each Settlement Date, as the case may be, will be, duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement and the Operating Partnership, threatened or contemplated, Prospectus; except as described in the Registration Statement and the Prospectus, the Company has is not received a party to or bound by any notice from the NYSE regarding the revocation outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSEcapital stock.
(gk) To the knowledge Each of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations Partnership and their subsidiaries is duly formed or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), organized and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties (“Properties”) and to operate its property and conduct its business as presently conducted and as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to so register or qualify would not, individually or in the aggregate, reasonably be so qualified or be in good standing would not (i) expected to have a material adverse effect on the assets, business, condition (financial or otherwise), earningsbusiness, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, or whole (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required Securities to be taken for sold through the due and proper authorizationManager, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby as principal or agent, or Forward Seller, as applicable, have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under and, when issued and delivered pursuant to this Agreement or the caption “Description Forward Contract against payment of Common the consideration set forth herein or therein, will be fully paid and Preferred Stock.”
(q) The Common Stock non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the Series D Preferred Stock conform issuance and will conform sale of the Securities by the Company is not subject to any preemptive, co-sale right, registration right, right of first refusal or similar rights, other than as to legal matters to the descriptions thereof contained described in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred StockProspectus.”
(rm) All of the issued and outstanding OP Units have been duly authorized for issuance by the Operating Partnership and its general partner and validly issued. The terms of the OP Units conform in all material respects to the descriptions related thereto in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus: (i) no OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any OP Units and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other securities of the Operating Partnership. Any prior offers and sales of the OP Units described in the Registration Statement and the Prospectus, have been offered and sold in transactions exempt from the registration requirements of the Securities Act, the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and blue sky laws. None of the OP Units were issued in violation of the preemptive or other similar rights of any holder of the Operating Partnership.
(n) With respect to stock options, share awards (including restricted common stock and restricted stock units), stock appreciation rights, dividend equivalent rights, performance awards, annual incentive cash awards and/or other equity-based awards (the “Equity Incentive Awards”) granted pursuant to the stock-based compensation plans of the Company and its subsidiaries, including without limitation the Company’s 2016 Long Term Incentive Plan (the “Company Stock Plans”), (i) each Equity Incentive Award intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) so qualifies, (ii) each grant of an Equity Incentive Award was duly authorized no later than the date on which the grant of such Equity Incentive Award was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Company Stock Plans, the Securities Act and all other applicable laws and regulatory rules or requirements, including the rules of the NYSE and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States applied on a consistent basis in the financial statements (including the related notes) of the Company and disclosed in filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Equity Incentive Awards prior to, or otherwise coordinating the grant of Equity Incentive Awards with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(o) There are no legal or governmental proceedings pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against the Company, the Operating Partnership or their subsidiaries or to which the Company or its subsidiaries or any of their properties are subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement thereto) but are not described as required. Except as described in the Registration Statement and the Prospectus, there are no optionsactions, warrants suits, inquiries, proceedings or investigations by or before any court or governmental or other rights regulatory or administrative agency or commission pending or, to purchasethe best knowledge of the Company and the Operating Partnership, agreements threatened, against or other obligations to issueinvolving the Company, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership or their subsidiaries, which might individually or in the aggregate reasonably be expected to have a Material Adverse Effect or prevent or adversely affect the transactions contemplated by this Agreement or the Forward Contract, nor to the knowledge of the Company and the Operating Partnership, is there any basis for any such action, suit, inquiry, proceeding or investigation. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus (“OP Units”or any amendment or supplement thereto) or other ownership interests in to be filed as an exhibit to the Operating Partnership Registration Statement that are outstanding.
(s) Except as described not described, filed or incorporated by reference in the Registration Statement 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.
(t) The Placement Shares to be sold Prospectus as required by the Company Securities Act. All such contracts to which the Company, the Operating Partnership or any of their subsidiaries is a party have been duly authorized andauthorized, when issued executed and delivered by the Company, the Operating Partnership or the applicable subsidiary, constitute valid and binding agreements of the Company, the Operating Partnership or the applicable subsidiary and are enforceable against payment therefore the Company, the Operating Partnership or the applicable subsidiary in accordance with the terms thereof, except as enforceability thereof may be limited by (i) the application of this Agreementbankruptcy, will be validly issuedreorganization, fully paid insolvency and non-assessable, other laws affecting creditors’ rights generally and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(uii) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toequitable principle
Appears in 1 contract
Sources: Equity Distribution Agreement (NexPoint Residential Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent to, and agree with, CF&Co that as of the date hereof, as of each Representation Date Applicable Time (as defined below) on which a certificate is required to be delivered pursuant to in Section 7(q20(a), and as of the time of each sale of any Placement Shares pursuant to this Agreement:):
(a) No order preventing or suspending The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby. The Company satisfies the pre-1992 eligibility requirements for the use of a registration statement on Form S-3 in connection with this offering (the pre-1992 eligibility requirements for the use of the Prospectus registration statement on Form S-3 include (i) having a non-affiliate, public common equity float of at least $150 million or a non-affiliate, public common equity float of at least $100 million and annual trading volume of at least three million shares and (ii) having been subject to the Exchange Act reporting requirements for a period of 36 months). The Company is not an “ineligible issuer,” as defined in Rule 405 of the Securities Act. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) of the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(b) Following its effectiveness, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities 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 any request on the part of the Commission for additional information has been complied with.
(c) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act and otherwise complied with the requirements of Rule 163 of the Securities Act, including without limitation the legending requirement.
(d) The Company has delivered to CF&Co one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as CF&Co has reasonably requested. The Prospectus delivered to CF&Co for use in connection with the offering of its Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date and as with respect to CF&Co pursuant to Rule 430B(f)(2) of the date Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of any amendment or supplement the Securities Act, and on any Settlement Date, did not, does not and will not contain any 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to CF&Co furnished to the Company in writing by CF&Co expressly for inclusion in any of the aforementioned documents. The Company hereby acknowledges that the only information that CF&Co has furnished to the Company expressly for use in the Registration Statement, the Prospectus or any Free Writing Prospectus (or any amendment or supplement thereto) is the information in (i) the second sentence of the second paragraph under the caption “Plan of Distribution” in the Prospectus; (ii) the first sentence of the fourth paragraph under the caption “Plan of Distribution” in the Prospectus and (iii) the paragraph appearing under the sub-heading “Other Relationships” under the caption “Plan of Distribution” in the Prospectus (collectively, the “CF&Co Information”).
(f) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, and at each Representation Date, as the case may be, included or will include an untrue statement of a material fact or omitted 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; provided, provided however, that the foregoing representations and warranties of this Section 6(f) shall not apply to statements or omissions in any such document made in reliance on information furnished to the Company and the Operating Partnership make no representation and warranty with respect to in writing by CF&Co, or any Agent Information (as defined of its representatives or agents, for use in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statement, the Prospectus, or any amendment or supplement thereto.
(Bg) at The documents incorporated by reference in the time of Registration Statement, or any amendment or supplement thereto (the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus“Disclosure Documents”), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 when they became effective under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and or were filed under the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the CommissionExchange Act, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply conformed in all material respects with the requirements of the Securities Act or the Exchange Act, and did not the rules and will not contain any regulations thereunder, as applicable. Further, no such documents contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; . However, the foregoing representations and warranties in this Section 6(g) will not apply to statements or omissions in any such document made in reliance on information furnished to the Company by CF&Co in writing stating that the information was intended for use in any such document.
(h) Each issuer Free Writing Prospectus, as of its issue date and as of the date of the Prospectus and any amendment or supplement theretoeach Applicable Time, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document incorporated by reference therein deemed to be a part thereof that has not been superseded or modified and, when taken together modified. The foregoing sentence does not apply to statements in or omissions from any issuer Free Writing Prospectus based upon and in conformity with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent CF&Co Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, formed and is validly existing as a corporation real estate investment trust in good standing under the laws of the State of Maryland, has the corporate with all requisite trust power and authority to own and lease, as the case may be, or lease its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects Statement. Each of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) subsidiaries of the Company other than the Operating Partnership as listed on Schedule 5 attached hereto (each a “Subsidiary” and collectively collectively, the “Subsidiaries”) has been duly organized, organized and is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full with all requisite corporate, limited partnership or limited liability company power and authority to own or leaseauthority, as the case may be, to own or lease its property and to operate its property properties and conduct its business as described in the Registration Statement Statement. The Subsidiaries are the only subsidiaries, direct or indirect, of the Company. The Company and each of the Prospectus and is Subsidiaries are duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction all jurisdictions in which the conduct of its their business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued The outstanding shares of capital stockstock of each of the Subsidiaries that is a corporation, units the outstanding partnership interests of each of the Subsidiaries that is a limited partnership interest and units of membership interest the outstanding limited liability company interests of each Subsidiary of the Company or the Operating Partnership Subsidiaries that is a limited liability company have been duly authorized, are authorized and validly issued, are fully paid and non-assessableassessable and, have been issued to the extent set forth in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the ProspectusSchedule 5, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, another Subsidiary free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power encumbrances and authority to execute equities and deliver this Agreement claims; and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, issue or other rights to convert any obligations into or exchange any securities forshares of capital stock, units of partnership interest in the Operating Partnership (“OP Units”) interests, limited liability company interests or other ownership interests in the Operating Partnership Subsidiaries are outstanding.
(sj) Except as described in the Registration Statement 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 The outstanding Common Shares of capital stock of or ownership interests in the Company have been duly authorized and validly issued and are outstanding.
(t) The Placement fully paid and non-assessable; the Shares to be issued and sold by the Company have been duly authorized and, and when issued and delivered against payment therefore in accordance with paid for as contemplated herein, the terms of this Agreement, Shares will be validly issued, fully paid and non-assessable and no preemptive rights or similar rights exist with respect to any of the Shares or the issue and sale thereof which have not been waived. The Company has duly reserved a sufficient number of Common Shares for issuance upon exchange of outstanding units of limited partnership of the Operating Partnership (the “OP Units”) in accordance with the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended to date (the “Operating Partnership Agreement”). Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by the Sales Agreements gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any Common Shares.
(k) The outstanding OP Units have been duly authorized and validly issued and are fully paid and non-assessable.
(l) The information set forth under the caption “Capitalization” in the Prospectus is true and correct. All of the Shares conform to the description thereof contained in the Registration Statement. The form of certificates for the Shares conforms to the law of the jurisdiction of the Company’s organization.
(m) The consolidated financial statements of the Company and the Subsidiaries, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement and the Prospectus, present fairly the financial position and the results of operations and cash flows of the Company and the consolidated Subsidiaries, at the indicated dates and for the indicated periods. Such financial statements and related schedules have been prepared in accordance with generally accepted principles of accounting, consistently applied throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary financial and statistical data included or incorporated by reference in the issuance of Registration Statement and the Prospectus present fairly the information shown therein and such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment data have been compiled on a basis consistent with the financial statements presented therein and the books and records of the purchase price and issuance and delivery company.
(n) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, who have audited certain of the Placement Shares to be issued and sold by financial statements filed with the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed Commission as an exhibit topart of, or incorporated by reference in, the Registration Statement, are independent public accountants as required by the Securities Act and the Rules and Regulations.
(o) There is no action, suit, claim or proceeding pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any of the Subsidiaries before any court or administrative agency or otherwise which if determined adversely to the Company or any of its Subsidiaries could reasonably be expected to result in any material adverse change in the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) (any such change a “Material Adverse Change”) or prospects of the Company and of the Subsidiaries taken as a whole or prevent the consummation of the transactions contemplated hereby, except as set forth in the Registration Statement.
(p) Except as provided in Schedule 7 attached hereto, the Company and the Subsidiaries have good and marketable title in fee simple to all the real properties, or any part thereof, owned by them (collectively, and with all buildings, structures and other improvements located thereon and all easements, rights and other appurtenances thereto, the “Properties”) and good and marketable title to all the other properties and assets reflected in the consolidated financial statements hereinabove described or described in the Registration Statement, subject to no lien, security interest, mortgage, pledge, charge, claim, restriction or encumbrance of any kind except those reflected in such financial statements or described in the Registration Statement or which are not material in amount or which do not materially impair the use of such Property for retail shopping center purposes; all liens, security interests, mortgages, pledges, charges, claims, restrictions or encumbrances on or affecting the properties and will assets of the Company or any of the Subsidiaries that are required to be disclosed in proper form the Registration Statement are disclosed therein or in documents incorporated by reference therein; neither the Company nor the Operating Partnership knows of any violation of any municipal, state or federal law, rule or regulation (including those pertaining to environmental matters) concerning the Properties which would have a Material Adverse Change on the Company and will comply the Subsidiaries taken as a whole; each of the Properties complies with all applicable zoning laws, ordinances, regulations and deed restrictions or other covenants in all material respects with and, if and to the extent there is a failure to comply, such failure does not result in a Material Adverse Change on the Company and the Subsidiaries taken as a whole and will not result in a forfeiture or reversion of title; none of the Company nor any Subsidiary has received from any governmental authority any written notice of any condemnation of or zoning change affecting the Properties or any part thereof which if consummated would have a Material Adverse Change on the Company and the Subsidiaries taken as a whole, and none of the Company nor any Subsidiary knows of any such condemnation or zoning change which is threatened and which if consummated would have a Material Adverse Change on the Company and the Subsidiaries taken as a whole; no lessee of any portion of any of the Properties is in default under any of the leases governing such Properties and there is no event which, but for the passage of time or the giving of notice or both, would constitute a default under any of such leases, except such defaults as are described in the Registration Statement or that would not have a Material Adverse Change on the Company and the Subsidiaries occupy their leased properties under valid and binding leases.
(q) The Company and the Subsidiaries have filed all applicable legal requirementsfederal, state, local and foreign tax returns which have been required to be filed and have paid all taxes indicated by such returns and all assessments, fines and penalties levied against them or any of them to the extent that any of the foregoing has become due, except for any such assessment, fine or penalty that is currently being contested in good faith and which, if material, is described in the Registration Statement. All tax liabilities have been adequately provided for in the financial statements of the Company, and the Company does not know of any actual or proposed additional material tax assessments except as described in the Registration Statement.
(r) Subsequent to the respective dates when information is given in the Registration Statement and the Prospectus, as they may be amended or supplemented, and except as otherwise stated in the Registration Statement, Prospectus or Disclosure Documents, the requirements of Company and its Subsidiaries (i) have not experienced a Material Adverse Change as to the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, prospects of the Company and its Subsidiaries taken as a whole, whether or not arising in the requirements ordinary course of the NYSE.
business, (uii) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized andnot entered into any material transaction, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toot
Appears in 1 contract
Sources: Sales Agreement (Ramco Gershenson Properties Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and In connection with the Operating Partnership, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to transactions contemplated by this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation hereby jointly and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating severally represent and warrant to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Purchaser that:
3.1 The Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commissioncorporation duly formed, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation and in good standing under the laws of the State of Maryland, Maryland and the Company has the all necessary corporate power and authority to own enter into this Agreement and lease, as the case may be, its property Related Agreements to which it is a party and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of consummate the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)and thereby.
(j) 3.2 The Operating Partnership has been duly organized, is validly existing as a limited partnership duly formed, validly existing and in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the necessary corporate power and authority to execute and deliver enter into this Agreement and the Related Agreements to perform its obligations hereunder which it is a party and all to consummate the transactions contemplated hereby and thereby.
3.3 All corporate action required and partnership action, as applicable, necessary to be taken for by each of the due Company and proper authorizationthe Operating Partnership to authorize the execution, execution delivery and delivery by it performance of this Agreement and consummation the Related Agreements to which it is a party and all other agreements and instruments delivered by it of the Company and the Operating Partnership in connection with the transactions contemplated hereby and thereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power , and authority to execute and deliver this Agreement and the Related Agreements to perform its which each of the Company and the Operating Partnership is a party have been duly executed and delivered by the Company and the Operating Partnership. This Agreement and the Related Agreements to which each of the Company and the Operating Partnership is a party constitute the valid, binding and enforceable obligations hereunder of the Company and all the Operating Partnership, enforceable in accordance with their terms, except as enforceability may be limited partnership action required to be taken for by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws of general application now or hereafter in effect affecting the due rights and proper authorization, remedies of creditors and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). The execution and delivery by it each of the Company and the Operating Partnership of this Agreement and the Related Agreements to which it is a party, and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary thereby, will not conflict with the organizational documents of the Company and the Operating Partnership or any material contract by which the Company and its subsidiaries, including the Operating Partnership, or their property or assets is bound, or any federal or state laws or regulations or decree, ruling or judgment of any United States or state court applicable to the Company and its subsidiaries or their property or assets, and no consent, approval, authorization or other order of, or registration or filing with, any governmental entity or the NYSE is required for each of the Company’s Amended and Restated Articles the Operating Partnership’s execution, delivery and performance of Incorporation setting forth this Agreement and the Related Agreements to which it is a party and all other agreements and instruments contemplated by this Agreement and the Related Agreements, or the consummation of the transactions contemplated hereby and thereby, except for the Company Stockholder Approval (as defined herein), the approval of the NYSE of the listing of the Exchange Shares (as defined below) and such as have been obtained or made by the Operating Partnership and the Company.
3.4 The Investor Units have been established in accordance with the terms of the Series D Preferred Stock governing documents of the Operating Partnership and the Certificate of Designations has been duly authorized by all necessary partnership action. The Purchased Units and the shares of common stock, $0.01 par value per share (the “Articles SupplementaryCompany Common Stock”) have been duly authorized and duly executed by ), of the Company and accepted for record with to be issued in the Maryland State Department of Assessments and Taxation Exchange (as defined below) (the “SDATExchange Shares”).
(o) The statements will be, as of the respective dates of their issuance, and subject to receipt of the Stockholder Approval in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization case of the Company is as set forth in the Registration Statement Exchange Shares, duly authorized by all necessary partnership and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange corporate action on behalf of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement and the ProspectusCompany, no optionsas applicable, 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, and when issued and delivered against payment therefore or other consideration therefor as provided in accordance with the terms of this Agreement, (a) will be validly issued, fully paid and non-assessable, assessable and the issuance of such Placement Shares (b) will not be subject to any statutory or contractual preemptive rights of third parties, other than the top-up rights of SFTY Venture LLC and SFTY Venture VII-B, LLC set forth in violation the Post IPO Stockholder’s Agreements, dated as of any preemptive or similar rights. April 14, 2017, between each of them and the Company.
3.5 Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewithwith, and payment pursuant to, the purchasers thereof terms hereof, the Purchaser will receive good, valid and marketable have good title to such Placement the Purchased Units and, if and when issued, the Exchange Shares, in each case free and clear of all Liens. liens, claims and encumbrances of any kind, other than transfer restrictions hereunder and under other agreements contemplated hereby.
3.6 The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements only vote of the Articles holders of Amendment any class or series of shares of stock of the Company necessary to approve the transactions contemplated by this Agreement and Restatement, the Related Agreements is the approval of a majority of the votes cast at the Company Stockholder Meeting (as amended or supplemented through the date hereof defined herein) (the “CharterCompany Stockholder Approval”), and Bylawspursuant to Section 312.03(b) and, as amendedfor the avoidance of doubt, Section 312.03(d) of the NYSE Listed Company and the requirements of the NYSEManual.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as Each of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation hereby, jointly and warranty severally, represents and warrants to the Underwriters and agrees with respect to any Agent Information (as defined in Section 9(a) hereof).each Underwriter, that:
(Aa) 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), a corporation duly organized and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation and in good standing under the laws of the State of Maryland, has the with requisite corporate power and authority to own and leaseown, as the case may be, lease or operate its property properties and to operate its property and conduct its business as described in the Registration Statement Statement, the Disclosure Package and the Prospectus and is duly qualified to transact business execute and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except deliver this Agreement and to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of consummate the transactions contemplated hereby (including the occurrence of any such effectissuance, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws sale and delivery of the State Shares by the Company as contemplated herein); each of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) subsidiaries of the Company other than (all of which are listed in Exhibit 21 to the Operating Partnership Registration Statement) (each a “Subsidiary” and collectively and, collectively, the “Subsidiaries”) ), has been duly organized, organized and is validly existing as a corporation, limited liability company, limited partnership or limited liability company similar entity in good standing under the laws of the jurisdiction of its organization, has the full organization with requisite power and authority to own (1) own, lease or lease, as the case may be, operate each of its property properties and to operate its property and conduct its business as described in the Registration Statement Statement, the Disclosure Package and the Prospectus and is duly qualified to transact business and is (2) in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stockOperating Partnership, units of limited partnership interest execute and units of membership interest of each Subsidiary deliver this Agreement and consummate the transactions contemplated hereby; the Subsidiaries are the only subsidiaries, direct or indirect, of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except Company; except as disclosed described in the Registration Statement Statement, the Disclosure Package and the Prospectus, the Company or the Operating Partnership, as the case may be, ownsno Subsidiary is currently prohibited, directly or indirectly, all from paying any dividends or distributions to the Company, 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; the outstanding ownership interests of each of the Subsidiaries have been duly authorized and validly issued and, except as described in each of the Registration Statement, the Disclosure Package and outstanding shares of capital stockthe Prospectus, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, another Subsidiary free and clear of all security interests, liens, mortgagesencumbrances and equities and claims; and, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in each of the Registration Statement Statement, the Disclosure Package and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, issue or other rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership Subsidiaries are outstanding. The Company is the sole general partner of the Operating Partnership.
(sb) Except commencing with its short taxable year ended December 31, 2015, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a “real estate investment trust” (a “REIT”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”) and the Company’s proposed method of operations, as described in each of the Registration Statement Statement, the Disclosure Package and the Prospectus, will enable it to continue to satisfy the requirements for qualification and taxation as a REIT under the Code for the Company’s taxable year ended December 31, 2016 and thereafter. To the knowledge of either the Company or the Operating Partnership, there is no options, warrants or other rights to purchase, agreements or other obligations to issueevent that would cause, or rights is likely to convert any obligations into or exchange any securities forcause, the Company to fail to qualify as a REIT under the Code.
(c) the Company had, as of September 30, 2016, the capitalization set forth in the Disclosure Package and the Prospectus in the column entitled “Historical” under the caption “Capitalization”; all of the issued and outstanding shares of capital stock of or ownership interests in the Company have been duly and validly authorized and issued and are outstanding.fully paid and non-assessable, and have not been issued in violation of or subject to any preemptive right or other similar right of stockholders arising by operation of law, under the Company’s charter, bylaws, or other organizational documents (collectively, the “Charter Documents”), under any agreement to which the Company is a party or otherwise; except as disclosed in or contemplated by both the Prospectus and the Disclosure Package, there are no outstanding (i) securities or obligations of the Company convertible into or exchangeable for any capital stock of the Company, (ii) warrants, rights or options to subscribe for or purchase from the Company any such capital stock or any such convertible or exchangeable securities or obligations or (iii) obligations of the Company to issue or sell any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options;
(td) The Placement the Shares to be issued and sold by the Company have been duly authorized for issuance, sale and delivery pursuant to this Agreement and, when issued and delivered by the Company against payment therefore therefor in accordance with the terms of this Agreement, will be duly and validly issued, issued and fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Sharesnonassessable, free and clear of all Liens. The certificatesany pledge, lien, encumbrance, security interest or other claim, and the issuance, sale and delivery of the Shares by the Company are not subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders arising by operation of law, under the Charter Documents, under any agreement to which the Company is a party or otherwise, other than as provided for in the Registration Rights Agreement, dated as of August 3, 2015, between the Company and FBR Capital Markets & Co. (as amended, the “Registration Rights Agreement”); the form of certificates for the Shares, if any, conforms to be used the corporate law of the jurisdiction of the Company’s incorporation and to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the any requirements of the Articles Charter Documents;
(e) the Company and each of Amendment and Restatement, as amended the Subsidiaries is duly qualified or supplemented through the date hereof (the “Charter”)licensed by, and Bylawsis in good standing in, as amendedeach jurisdiction in which it conducts its business, or in which it owns or leases property or maintains an office and in which such qualification or licensing is necessary and in which the failure, individually or in the aggregate, to be so qualified or licensed would reasonably be expected to have a material adverse effect on the business, financial condition, results of operations or prospects of the Company and the requirements Subsidiaries taken as a whole (a “Material Adverse Effect”);
(f) the Company and each of its Subsidiaries has legal and valid title to all assets and properties reflected as owned by it in the Registration Statement, the Disclosure Package and the Prospectus (whether through fee ownership, mineral estates or similar rights of ownership), in each case free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and defects, except such as are disclosed in the Registration Statement, the Disclosure Package and the Prospectus or as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; any real property, buildings, improvements, equipment or personal property held under lease by the Company or any Subsidiary is held under a lease that is valid, existing and enforceable by the Company or such Subsidiary, with such exceptions as are disclosed in the Registration Statement, the Disclosure Package and the Prospectus or as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and neither the Company nor any Subsidiary has received any written notice of any material claim that is adverse to the rights of the NYSE.Company or any Subsidiary under any such lease;
(ug) The shares of Common Stock initially issuable upon conversion all descriptions of the Series D Preferred Stock Company’s organization and proposed method of operation set forth in the Registration Statement, the Disclosure Package and the Prospectus are accurate and fair summaries of the legal and tax matters therein described in all material respects; the Registration Statement, the Disclosure Package or the Prospectus contain accurate summaries of all material contracts, agreements, instruments and other documents of the Company required to be described therein; the copies of all contracts, agreements, instruments and other documents (including governmental licenses, authorizations, permits, consents and approvals and all amendments or waivers relating to any of the foregoing) that have been duly authorized andpreviously made available to the Underwriters or their counsel or that are filed as exhibits to the Registration Statement are complete and accurate in all material respects;
(h) the Company and each Subsidiary owns or possesses such licenses or other rights to use all patents, when issued upon conversion trademarks, service marks, trade names, copyrights, software and design licenses, trade secrets, manufacturing processes, other intangible property rights and know-how as are necessary for the Company and each Subsidiary to conduct the Company’s and each Subsidiary’s business as described in the Registration Statement, the Disclosure Package and the Prospectus (collectively, “Intangibles”), except where the failure to own or possess such Intangibles would not reasonably be expected to have a Material Adverse Effect; and neither the Company nor any Subsidiary has received written notice of any infringement of or conflict with (and the Company and each Subsidiary does not know of any such infringement of or conflict with) asserted rights of others with respect to any Intangibles which would reasonably be expected to have a Material Adverse Effect;
(i) the Company and the Subsidiaries own or have a valid right to access and use all computer systems, networks, hardware, software, databases, websites and equipment used to process, store, maintain and operate data, information and functions necessary for the conduct of the Series D Preferred Stock business of the Company and the Subsidiaries as described in accordance the Registration Statement, the Disclosure Package and the Prospectus (the “Company IT Systems”), except where the failure to own or have right to access such Company IT Systems would not reasonably be expected to have a Material Adverse Effect. The Company IT Systems are adequate for, and operate and perform in all material respects as required in connection with, the operation of the business of the Company and the Subsidiaries as currently conducted, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(j) neither the Company nor any Subsidiary has violated, or received notice of any violation with respect to, any law, rule, regulation, order decree or judgment applicable to it and its business, including, without limitation, those relating to transactions with affiliates, environmental, safety or similar laws, federal or state laws relating to discrimination in the hiring, promotion or pay of employees, federal or state wages and hours law, the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder (“ERISA”), except for those violations that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(k) there are no outstanding loans or advances or guarantees of indebtedness by the Company or any Subsidiary to or for the benefit of any of the officers, directors, affiliates or representatives of the Company or any Subsidiary or any of the members of the families of any of them;
(l) except for compensation payable to the Underwriters pursuant hereto, neither the Company nor any Subsidiary has incurred any liability for any finder’s fees or similar payments in connection with the transactions contemplated hereby;
(m) the Company is not in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under) (i) the Charter Documents or (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company is a party or by which it or its properties are bound, except, in the case of clause (ii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
(n) none of the Subsidiaries is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under) (i) its certificate of incorporation, bylaws, certificate of formation, limited liability company agreement, certificate of limited partnership, agreement of limited partnership or other organizational documents (collectively, the “Subsidiary Charter Documents”) or (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which such Subsidiary is a party or by which any of them or their respective properties are bound, except, in the case of clause (ii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
(o) the execution, delivery and performance by each of the Company and the Operating Partnership of this Agreement, the issuance, sale and delivery of the Shares by the Company, the use of the proceeds from the sale of the Shares as described in the Registration Statement, the Disclosure Package and the Prospectus and the consummation by the Company of the transactions contemplated hereby, and the compliance by the Company and the Subsidiaries with the terms and provisions hereunder will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) the Charter Documents or Subsidiary Charter Documents, as applicable, (ii) any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which it or its respective properties are bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, consent, license, permit or order applicable to the Company or any Subsidiary, except in the case of clauses (ii) or (iii) for such conflicts, breaches or defaults that have been validly waived or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or result in the creation or imposition of any material lien, charge, claim or encumbrance upon any property or asset of the Articles SupplementaryCompany or any Subsidiary;
(p) this Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership;
(q) assuming that no purchase is made in violation of the Charter Documents, no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or approval of the stockholders of the Company or the limited partners of the Operating Partnership is required in connection with the execution, delivery and performance by the Company and the Operating Partnership of this Agreement, or the consummation by the Company and the Operating Partnership of the transactions contemplated hereby, or the issuance, sale and delivery of the Shares by the Company as contemplated hereby, other than (i) such as have been obtained or made, or will have been obtained or made at the Closing Time or the relevant Option Closing Time, as the case may be, (ii) as may be validly issuedrequired under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), fully paid the New York Stock Exchange (the “NYSE”), or the rules and nonassessableregulations of the Financial Industry Regulatory Authority (“FINRA”), (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters, and (iv) such other approvals, authorizations, consents, orders or filings the issuance failure of such shares which to obtain or make would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(r) the Company and each of Common Stock will not be subject tothe Subsidiaries have all necessary licenses,
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)to, and as of the time of each sale of any Placement Shares pursuant to this Agreementagree with, CF&Co. that:
(a) No order preventing The Common Stock is registered pursuant to Section 12(g) or suspending the use 12(b) of the Prospectus has been issued by the Commission, Exchange Act and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation has filed all reports, schedules, forms, statements and warranty other documents required to be filed by it with respect the Commission (the "Commission Documents") for at least two (2) years, and all of such filings have been made on a timely basis. The Common Stock is currently listed on the Exchange under the trading symbol "FR". The Company and the Operating Partnership meet the requirements for use of Form S-3 under the Securities Act, including but not limited to any Agent Information (as defined in Section 9(a) hereof).the transaction requirements for a primary offering;
(Ab) At The Registration Statement and the original effectiveness Prospectus, including the financial statements, schedules and related notes included in the Prospectus as of the date hereof and at the time the Registration StatementStatement became effective, (Band when any post effective amendment to the Registration Statement or Rule 162(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission or at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) filing of the Securities Act Company's Annual Report on Form 10-K (whether such amendment was by postthe "10-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectusK"), (C) at the time the Company did or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Securities Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus as of the date hereof and at the time the Registration Statement became effective, and at any Settlement Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission or at the time of the filing of the 10-K, did not or will comply in all material respects with all applicable provisions of the Securities Act and will not contain all statements required to be stated therein in accordance with the Securities Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement, on the date of the filing of the 10-K and on the Settlement Date, no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement, on the date of the filing of the 10-K and at any Settlement Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company and the Operating Partnership will have complied or will comply with the requirements of Rule 111 under the Securities Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 7(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to CF&Co. furnished in writing to the Company or the Operating Partnership by CF&Co. specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. Neither the Company nor the Operating Partnership has distributed any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the preliminary prospectus, the Prospectus or any other materials, if any, permitted by the Securities Act (which were disclosed to CF&Co. and CF&Co.'s counsel);
(c) Any preliminary prospectus supplements filed pursuant to Rule 424 under the Securities Act and each 462(b) Registration Statement, if any, complied or will comply when so filed in all material respects with all applicable provisions of the Securities Act and did not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company each preliminary prospectus and the Operating Partnership make no representation and warranty Prospectus delivered to CF&Co. for use in connection with respect the offering of Shares will, at the time of such delivery, be identical to any Agent Information. the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusSecurities Act, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included in, and did notincorporated by reference in, does not and will not include any information that conflictedthe Prospectus, conflicts or will conflict with at the information contained in time the Registration Statement or became effective, as of the date of the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with at the Prospectus accompanyingtime of the filing of the 10-K and as of the Settlement Date, or delivered prior to delivery of, such Issuer Free Writing Prospectusduring the period specified in Section 6(h), did not and will not contain any 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; provided, however, that . The foregoing representations and warranties in this Section 7(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to CF&Co. furnished in writing to the Company and or the Operating Partnership make no representation and warranty with respect to by CF&Co. specifically for inclusion in the Registration Statement or Prospectus or any Agent Information.amendment or supplement thereto;
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) Maryland. The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the Delaware Revised Uniform Limited Partnership Act. Each of First Industrial Financing Partnership, L.P. (the "Financing Partnership"), First Industrial Securities, L.P. ("Securities, L.P."), First Industrial Mortgage Partnership, L.P. (the "Mortgage Partnership"), First Industrial Pennsylvania, L.P. ("FIP"), First Industrial Harrisburg, L.P. ("FIH") and First Industrial Indianapolis, L.P. ("FII") (the Financing Partnership, Securities, L.P., the Mortgage Partnership, FIH, FII and FIP are referred to collectively herein as the "Partnership Subsidiaries") has been duly organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIMC"), First Industrial Development Services, Inc. ("FIDSI") and First Industrial Pennsylvania Corporation ("FIPC"), (FISC, FIIC, FIFC, FIMC, FIDSI and FIPC are referred to collectively herein as the State "Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries" or individually as a "Subsidiary"), has been duly organized and is validly existing as a corporation in good standing under and by virtue of Delaware has the laws of its jurisdiction of incorporation. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FIH. FIDSI is a wholly-owned subsidiary of the Operating Partnership. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Operating Partnership, the Company and each of the Subsidiaries has, and at any Settlement Date will have, full corporate, partnership or limited liability company power and authority to own or leaseauthority, as the case may be, its property to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its property and conduct its business in which it engages or proposes to engage as described in the Registration Statement Prospectus and the Prospectus transactions contemplated hereby and is thereby. The Company and each of the Corporate Subsidiaries is, and at any Settlement Date will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, except where failure to obtain such qualifications or registration will not have a material adverse effect on (i) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole or on the 814 in service properties owned, directly or indirectly, by the Company as of June 30, 2004 (the "Properties") taken as a whole, (ii) the issuance, validity or enforceability of the Shares or (iii) the consummation of any of the transactions contemplated by this Agreement (each a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are identified in Schedule 3 hereto. The Operating Partnership and each of the Partnership Subsidiaries is, and at any Settlement Date will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualification or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would registration will not have a Material Adverse Effect, which jurisdictions of foreign qualification or registration are identified in Schedule 3 hereto. Complete and correct copies of the articles of incorporation and of the by-laws of the Company, the certificate of limited partnership and agreement of limited partnership of the Operating Partnership and the charter documents, partnership agreements and other organizational documents of the Subsidiaries and all amendments thereto as have been requested by CF&Co. or CF&Co.'s counsel have been delivered to CF&Co. or CF&Co.'s counsel;
(f) The Company's authorized capitalization consists of 10,000,000 shares of preferred stock, par value $.01 per share, 100,000,000 shares of common stock, par value $.01 per share, and 65,000,000 shares of excess stock, par value $.01 per share. All of the Company's issued and outstanding shares of common stock and preferred stock have been duly authorized and are validly issued, fully paid and non-assessable and will have been offered and sold in compliance, in all material respects, with all applicable laws (including, without limitation, federal or state securities laws). The Shares have been duly authorized for issuance and sale to CF&Co. or to purchasers identified by CF&Co. pursuant to this Agreement and, when validly issued and delivered pursuant to this Agreement against payment of the Net Proceeds, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar right and will have been offered and sold in compliance, in all material respects, with all applicable laws (including, without limitation, federal or state securities laws). The description of the Shares, and the statements related thereto, contained in the Registration Statement or the Prospectus are, and the Prospectus at any Settlement Date will be, complete and accurate in all material respects. Upon payment of the Net Proceeds and delivery of certificates representing the Shares in accordance herewith, CF&Co. or such other purchaser will receive good, valid and marketable title to the Shares, free and clear of all security interests, mortgages, pledges, liens, encumbrances, claims and equities. No shares of common or preferred stock of the Company are reserved for any purpose other than securities to be issued pursuant to this Agreement and except as disclosed in the Prospectus other than shares reserved for issuance pursuant to the Company's Shareholder Rights Plan;
(g) As of the Settlement Date, the partnership agreement of the Operating Partnership will have been duly authorized, executed and delivered by the Company, as general partner and a limited partner and the partnership agreement of each Partnership Subsidiary, will have been duly authorized, validly executed and delivered by each partner thereto and (assuming in the case of the Operating Partnership the due authorization, execution and delivery of the partnership agreement by each limited partner other than the Company) each such partnership agreement will be a valid, legally binding and enforceable in accordance with its terms immediately following the Settlement Date subject to (i) the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors and (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought. All of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company or and each Corporate Subsidiary, all of the outstanding units of general, limited and/or preferred partner interests of the Operating Partnership and each Partnership Subsidiary will have been duly authorized, authorized and are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws ; and were not issued in violation of any preemptive or similar rights. Except (except as disclosed described in the Registration Statement and Prospectus) will be owned directly or indirectly (except in the Prospectus, case of the Company Company) by the Operating Partnership or the Operating PartnershipCompany, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind liens and encumbrances (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for pledges in connection with the loan agreements of the Operating Partnership, the Company that are “significant subsidiaries” and the Subsidiaries), and all of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating partnership interests in each Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Subsidiary will have been duly authorized and duly executed by the Company are validly issued, fully paid, and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no options, warrants ) will be owned directly or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, units of partnership interest in indirectly by the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement SharesCompany, free and clear of all Liens. security interests, liens and encumbrances (except for pledges in connection with the loan agreements of the Operating Partnership, the Company and the Subsidiaries);
(h) The certificatesfinancial statements, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit tosupporting schedules and related notes included in, or incorporated by reference in, the Registration Statement and will be in proper form and will the Prospectus comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment Securities Act and Restatementthe Exchange Act, as amended or supplemented through the date hereof (the “Charter”)applicable, and Bylawspresent fairly the consolidated financial condition of the entity or entities or group presented or included therein, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessablerespective dates thereof, and the issuance of such shares of Common Stock will not be subject toits consoli
Appears in 1 contract
Sources: Sales Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, hereby represent and warrant to the Agent that Underwriters, as of the date hereofof this Agreement, as of the Closing Time and as of each Representation Date Option Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(qif any), and as agree with each of the time of each sale of any Placement Shares pursuant to this AgreementUnderwriters, as follows:
(a) No The Registration Statement has become effective under the Securities Act and no stop order preventing or suspending the use effectiveness of the Prospectus Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied with any request on the part of the Commission for additional information.
(b) The Registration Statement as of its effective date and as of the date hereof complied and, as it may be further amended after the date hereof, will comply, and the Preliminary Prospectus, the Prospectus and any further amendments or supplements thereto, each when filed with the Commission, complied or will comply, in all material respects with the requirements of the Securities Act and the Securities Act Regulations.
(c) The Registration Statement did not, as of its effective date and or as of the date of any amendment or supplement and on any Settlement Datethereto, did not, does not and will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementProspectus will not, as of the date hereofapplicable filing date, at the Closing Time and any post-effective amendment theretoon each Option Closing Time, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Dateif any, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain any 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; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporatedDisclosure Package as of [ ] [a.m./p.m.] New York City time on [ ], or to be incorporated, by reference in 2020 (the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d“Initial Sale Time”) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; providedas of its issue date or date of first use and at all subsequent times through the Initial Sale Time, howevereach Issuer Free Writing Prospectus, when considered together with 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 representations and warranties made in this Section 3(c) shall not apply to any statement in or omitted from the Registration Statement, the Prospectus or the Disclosure Package in reliance upon and in conformity with (i) the information furnished to the Company in writing by or on behalf of the Underwriters through the Representatives expressly for use therein (it being understood and agreed that the Company and only such information furnished by any Underwriter consists of the Operating Partnership make no representation and warranty information described as such in the last sentence of Section 11(c)) or (ii) the Selling Stockholder Information (as defined below).
(d) Each Issuer Free Writing Prospectus does not conflict with respect to any Agent Informationthe information contained in the Registration Statement.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act; and any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with respect to the offering Commission in accordance with the requirements of the Placement Shares contemplated by the Registration Statement Securities Act and the ProspectusSecurities Act Regulations.
(f) The Placement Shares have been authorized Except for listing on the NYSEIssuer Free Writing Prospectuses identified in Schedule III hereto, subject and any electronic road show relating to official notice of issuance and the Company is in material compliance with the rules public offering of the NYSEShares, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received prepared, used or referred to, and will not, without the prior consent of the Representatives, prepare, use or refer to, any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSEFree Writing Prospectus.
(g) To The Preliminary Prospectus, the knowledge of Prospectus and any Issuer Free Writing Prospectuses (to the Company, there are no contracts or documents of a character which are extent any such Issuer Free Writing Prospectus was required to be filed as exhibits with the Commission) delivered to the Registration Statement other than those that are so filed.Representatives for use in connection with the public offering of the Shares contemplated herein have been or will be identical to the versions of such documents transmitted to the Commission for filing via the Electronic Data Gathering Analysis and Retrieval System (“▇▇▇▇▇”), except to the extent permitted by Regulation S-T.
(h) To From the knowledge time of initial confidential submission of a draft registration statement relating to the Shares with the Commission through the date hereof, the Company has been and is an “emerging growth company” as defined in Section 2(a)(19) of the Company and the Operating Partnership, there are no affiliations or associations between Securities Act (i) any member of the Financial Industry Regulatory Authority, Inc. (an “FINRAEGC”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws None of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct Company nor any of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not affiliates has (i) have a material adverse effect on engaged in any Testing the assetsWaters Communication (as defined below) other than through, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Companyas disclosed to, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, Representatives or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company authorized anyone other than the Operating Partnership (each a “Subsidiary” and collectively Representatives to engage in Testing the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of Waters Communications; the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company reconfirms that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tothe
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, the Underwriters as set forth below in this Section 1:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the Agent that knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(b) The Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act”). The documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(c) The Registration Statement, as of each Representation Date effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof and at the Closing Time or any Option Closing Time, each as defined below) on which herein, did not, and does not contain an untrue statement of a certificate is material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to Section 7(qmake the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of the applicable filing date, the date hereof and at the Closing Time and on each Option Closing Time (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 8(b) hereof); the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) As of 8:25 p.m. (Eastern time) on November 25, 2019 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending Notes and at the use of Closing Time and each Option Closing Time, the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did Disclosure Package will not, does not and will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statementissue date or date of first use and at all subsequent times through the Initial Sale Time, (B) each Issuer Free Writing Prospectus did not, and at the time of the most recent amendment thereto for the purposes each sale of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) Notes and at the time the Company or any person acting on its behalf (within the meaningClosing Time and each Option Closing Time, for this clause onlyeach such Issuer Free Writing Prospectus will not, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is contain an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporated, statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to be incorporated, by reference the Company expressly for use therein (that information being limited to that described in the Registration Statement last sentence of the first paragraph of Section 8(b) hereof).
(e) In connection with this offering, the Company has not offered and will not offer the Notes in a manner in violation of the Securities Act; and the Company has not distributed and will not distribute any offering material in connection with the offer and sale of the Notes except for the Preliminary Prospectus, the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) or the Registration Statement or for communications satisfying the requirements of the Securities Act or Rule 134 under the Securities Act or Act.
(iif) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with (including the Securities Act (to the extent required therebyFinal Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(eg) The Company was not an “ineligible issuer” (as defined is eligible to use Free Writing Prospectuses in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and Act; any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the rules Commission in accordance with the requirements of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Securities Act; and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and each Free Writing Prospectus that the Company has not received any notice from filed, or is required to file, pursuant to Rule 433(d) under the NYSE regarding Securities Act or that was prepared by or on behalf of or used by the revocation of such listing Company complies or otherwise regarding will comply in all material respects with the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge requirements of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filedSecurities Act.
(h) To Except for the knowledge Issuer Free Writing Prospectuses identified in Schedule II hereto, the information set forth on Exhibit A and any electronic road show relating to the public offering of the Notes contemplated herein, the Company has not prepared, used or referred to, and will not, without the Operating Partnership, there are no affiliations or associations between (i) any member prior consent of the Financial Industry Regulatory AuthorityRepresentatives, Inc. (“FINRA”)prepare, and (ii) the Company use or refer to, any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Free Writing Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporatedPreliminary Prospectus, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriters for use in connection with the public offering of the Notes contemplated herein have been and is in good standing as a foreign corporation in each jurisdiction in which will be identical to the conduct versions of its business or its ownership or leasing of property requires such qualificationdocuments transmitted to the Commission for filing via E▇▇▇▇, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects permitted by Regulation S-T of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Securities Act.
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in Company filed the Registration Statement and with the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCommission before using any Issuer Free Writing Prospectus.
(k) Each “significant subsidiary” The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus.
(as defined in Rule 1-02(wl) of Regulation S-X) of the Company There are no persons with registration or other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organizedsimilar rights to have any equity or debt securities, is validly existing as a corporationincluding securities which are convertible into or exchangeable for equity securities, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority registered pursuant to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned otherwise registered by the Company or the Operating Partnership directly under the Securities Act, all of which registration or indirectlysimilar rights are fairly summarized in the Registration Statement, free the Prospectus and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly takenDisclosure Package.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company as of September 30, 2019 is as set forth under the heading “Capitalization” in the Registration Statement Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, agreements or employee benefit plans or dividend reinvestment the exercise of convertible or stock purchase plans exchangeable securities or options, in each case referred to in the Registration Statement Statement, the Disclosure Package and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized All of the issued and outstanding shares of capital stock of the Company conforms have been duly authorized and will validly issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and the requirements of the New York Stock Exchange, Inc. (the “NYSE”) and were not issued in violation of any preemptive, right of first refusal, or similar right. Attached as Schedule III is a true and complete list of each entity (other than a securitization entity) in which the Company has a direct or indirect majority equity or voting interest that is consolidated with the Company for financial reporting purposes under U.S. generally accepted accounting principles (each, a “Subsidiary” and, together, “Subsidiaries”). All of the issued and outstanding equity interests of each Subsidiary that is a significant subsidiary within the meaning of Regulation S-X (each, a “Significant Subsidiary” and, together, the “Significant Subsidiaries”) have been duly and validly authorized and issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and, if any of its securities are listed on the NYSE, the requirements of the NYSE, were not issued in violation of any preemptive, right of first refusal, or similar right and, except as set forth in the Disclosure Package and the Prospectus, or otherwise specified in Schedule III, are owned, directly or indirectly, by the Company free and clear of all liens. There are no outstanding options, warrants or other rights to acquire or purchase, or instruments convertible into or exchangeable for, any equity interests of the Company or any Subsidiary, except as set forth in the Disclosure Package and the Prospectus or held by the Company or any of its Subsidiaries.
(n) Each of the Company and each Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its property and to conduct its business, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, management, financial position, results of operations or prospects of the Company and the Subsidiaries taken as a whole or on the performance by the Company or the Operating Partnership of its obligations under this Agreement (a “Material Adverse Effect”).
(o) The Notes conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement Statement, the Prospectus and the Disclosure Package; the Indenture conforms in all material respects to the descriptions thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and the statements in the Registration Statement, the Disclosure Package and the Prospectus under the caption headings “Description of Common Additional U.S. Federal Income Tax Considerations” and Preferred Stock“U.S. Federal Income Tax Considerations” fairly summarize in all material respects the legal matters therein described.”
(rp) Except as described in the Registration Statement The execution and delivery of, 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, units performance by each of partnership interest in the Company and the Operating Partnership (“OP Units”) or other ownership interests in of its obligations under, this Agreement have been duly and validly authorized by the Company and the Operating Partnership, and this Agreement has been duly executed and delivered by the Company and the Operating Partnership are outstandingand, assuming due authorization, execution, delivery, validity, legally binding effect and enforceability hereof by you and thereof by the counterparties thereto, this Agreement constitutes the valid and legally binding agreements of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s and the Operating Partnership’s obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law. The execution and delivery of, and the performance by, the Company of its obligations under the Indenture have been duly and validly authorized by the Company, and the Indenture constitutes the valid and legally binding agreements of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(s) Except as described in the Registration Statement 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.
(tq) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares Notes to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued, authenticated and delivered against payment therefor in accordance herewithwith this Agreement and the Indenture, the purchasers thereof will receive good, constitute valid and marketable title legally binding obligations of the Company, except as may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to such Placement Sharesor affecting creditors’ rights generally and by general equitable principles, free and clear regardless whether enforcement is considered in a proceeding in equity or at law, that may limit the right to specific enforcement of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement remedies and will be in proper the form contemplated by, and entitled to the benefits of, the Indenture.
(r) [Reserved.]
(s) The Company has taken all necessary actions to ensure that the Notes will be approved for listing on the NYSE, subject to official notice of issuance; the Company has taken all necessary actions to ensure that, upon and at all times after the NYSE approves the Notes for listing, the Company is and will comply be in compliance in all material respects with all applicable legal requirementscorporate governance requirements set forth in the NYSE’s listing standards that are then in effect.
(t) Neither the Company nor the Subsidiaries, the requirements or any of their respective directors, officers, representatives or affiliates has taken, nor will take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the Articles price of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, any security of the Company and to facilitate the requirements sale or resale of the NYSENotes in a violation of Regulation M under the Exchange Act.
(u) The shares of Common Stock initially issuable upon conversion Neither the Company nor any of the Series D Preferred Stock have been duly authorized and, when issued upon conversion Subsidiaries or any of the Series D Preferred Stock their respective affiliates (i) is required to register as a “broker” or “dealer” in accordance with the terms provisions of the Articles SupplementaryExchange Act, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toor (ii
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that Manager as of the date hereof, hereof and as of each Representation Date (as defined below) on which a certificate is certificates are required to be delivered pursuant to Section 7(q)8(o) hereof, as of each Applicable Time and as of the time of each sale of any Placement Shares pursuant to this AgreementSettlement Date, as follows:
(a) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of Securities contemplated hereby and has prepared and filed with the Commission the Registration Statement on Form S-3 (File No. 333-251057). The Registration Statement has been declared effective by the Commission. No stop order preventing or suspending the use effectiveness of the Prospectus Registration Statement has been issued by the Commission, and the Prospectus, as of its date and as no proceeding for that purpose or pursuant to Section 8A of the date Securities Act has been initiated against the Company or, to the knowledge of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)Partnership, threatened by the Commission.
(Ab) At the original effectiveness time of filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section Sections 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the earliest time thereafter that the Company or any person acting on its behalf another offering participant made a bona fide offer (within the meaning, for this clause only, meaning of Rule 163(c164(h)(2) under the Securities Act) made any offer relating to of the Securities in reliance Common Stock, on the exemption of Rule 163 under the Securities Actdate hereof and on each Representation Date, and (D) as of the date hereofeach Applicable Time and as of each Settlement Date, the Company was not, is not and is a will not be (as the case may be) an “well-known seasoned ineligible issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”))Act.
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Prospectus, when filed and as of their respective dates, complied in all material respects with the Securities have been Act and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copies thereof delivered to the Manager for use in connection with the offer and remain eligible for registration by sale of the Company on such automatic shelf registration statementSecurities. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable at the time it became effective date and at each deemed effective date with respect to Agents the Manager pursuant to Rule 430B(f)(2) under the Securities Act and at each Settlement Date, complied and will comply in all material respects with the Securities Act, Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Manager specifically for inclusion therein.
(d) Any documents incorporated by reference into the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; .
(e) The Prospectus does not and will not, as of its date and on each Representation Date, as of each Applicable Time and as of the date of the Prospectus and any amendment or supplement theretoeach Settlement Date, will not contain any 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; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, by or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements on behalf of the Exchange ActManager specifically for inclusion therein.
(df) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than including, without limitation, any “road show” (as referred to defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in that is a free writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with prospectus under Rule 433 under the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, Act) did not and will not contain any 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; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eg) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the date of first use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Manager. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act.
(h) The Company was has not an “ineligible issuer” (as defined in Rule 405) as distributed and, prior to the later to occur of each Settlement Date and completion of the eligibility determination date for purposes distribution of Rules 164 and 433 under the Securities, will not distribute any offering material in connection with the offering or sale of the Securities Act with respect to the offering of the Placement Shares contemplated by other than the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for Prospectus and any Issuer Free Writing Prospectus to which the Manager has consented, which consent will not be unreasonably withheld or delayed, or that is required by applicable law or the listing on the NYSE, subject to official notice maintenance requirements of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(gi) To From the knowledge time of the Company, there are no contracts or documents filing of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filedwith the Commission through the date of this Agreement, the Company has been and is an “emerging growth company” as defined in Section 2(a) of the Securities Act.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(ij) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, Maryland and has the requisite corporate power and authority to own own, lease and lease, as operate its properties (the case may be, its property “Company Properties”) and to operate its property and conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and to enter into and perform its obligations under this Agreement, and, as the sole member and manager of the General Partner (as defined below), to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing as a foreign corporation in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationqualification is required, except to the extent that where the failure to be so qualified qualify or to be in good standing would not (i) not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the assets, business, condition (financial or otherwise), earningsbusiness, properties, managementassets, net worth, results of operations or prospects of the Company, Company and the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, or whole (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(jk) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware and has the full requisite limited partnership power and authority to own or leaseown, as lease and operate its properties (the case may be, its property “OP Properties”) and to operate its property and conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and to enter into and perform its obligations under this Agreement. The Operating Partnership is duly qualified as a foreign limited partnership to transact business and is in good standing as a foreign limited partnership in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationqualification is required, except to the extent that where the failure to be so qualified qualify or to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Alpine Income Property GP, LLC, a Delaware limited liability company (the “General Partner”), is the sole general partner of the Operating Partnership. The aggregate percentage interests of the Company and the other limited partners in the Operating Partnership is as set forth in the Prospectus. The Amended and Restated Agreement of Limited Partnership of the Operating Partnership has been duly authorized, executed and delivered by the General Partner and is a legally valid and binding agreement of the General Partner, enforceable against the General Partner in accordance with its terms, except to the extent enforceability may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws.
(kl) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) subsidiary of the Company other than and the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, incorporated or formed and is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organizationincorporation or formation, and each such subsidiary has the full requisite corporate or similar power and authority to own or leaseown, as lease and operate its properties (collectively, with the case may beCompany Properties and the OP Properties, its property the “Properties”) and to operate its property and conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationqualification is required, except to the extent that where the failure to be so qualified qualify or to be in good standing would not not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other ownership interests of each Subsidiary subsidiary of the Company and the Operating Partnership have been duly authorized and validly issued, are (as applicable) fully paid and nonassessable and are owned by the Company or and the Operating Partnership Partnership, directly or indirectlyindirectly through subsidiaries, free and clear of all any security interests, liens, mortgages, encumbrances, pledges, claims equities or claims. None of the outstanding shares of capital stock or other defects ownership interests of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries subsidiary of the Company that are “significant subsidiaries” and the Operating Partnership was issued in violation of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it preemptive or similar rights of the transactions contemplated hereby have been duly and validly takensecurityholder of such subsidiary.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in Prospectus. All the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange outstanding shares of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms have been duly authorized and will conform validly issued and are fully paid and nonassessable. None of the outstanding shares of capital stock of the Company was issued in all material respects to violation of the description thereof contained in preemptive or similar rights of any securityholder of the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Company. Except as described in the Registration Statement and the Prospectus, there are no outstanding options, warrants or other similar rights to purchasesubscribe for, agreements or other contractual obligations to issue, sell, transfer or rights to convert acquire, any obligations shares of capital stock of the Company or any securities convertible into or exchange exercisable or exchangeable for any securities forshares of capital stock of the Company. The Securities to be issued and sold by the Company hereunder have been duly authorized and, units when issued and delivered against full payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and will not be issued in violation of partnership interest in the preemptive or similar rights of any securityholder of the Company.
(n) All of the issued and outstanding OP Units have been duly authorized for issuance by the Operating Partnership (“and validly issued. None of the issued and outstanding OP Units”) Units have been issued in violation of the preemptive or other ownership interests in similar rights of any securityholder of the Operating Partnership are outstanding.
(s) Partnership. All of the issued and outstanding OP Units were issued in transactions exempt from the registration requirements of the Securities Act and applicable state securities laws. Except as described in the Registration Statement and the Prospectus, there are no outstanding securities convertible into or exercisable or exchangeable for any OP Units and there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any 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 outstandingOperating Partnership.
(to) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore Except as disclosed in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirementsthe Prospectus, the requirements Company has no outstanding stock options or other equity-based awards of the Articles or to purchase shares of Amendment Common Stock pursuant to an equity-based compensation plan or otherwise.
(p) This Agreement has been duly authorized, executed and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, delivered by each of the Company and the requirements of the NYSEOperating Partnership.
(uq) The shares of Common Stock initially issuable upon conversion This Agreement constitutes a valid and binding agreement of the Series D Preferred Stock have been duly authorized andCompany and the Operating Partnership, when issued upon conversion of enforceable against the Series D Preferred Stock Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the terms extent that any indemnification and contribution provisions hereof may be limited by federal or state securities laws or public policy considerations in respect thereof.
(r) The Management Agreement, dated November 26, 2019, among the Company, the Operating Partnership and the Adviser (the “Management Agreement”), remains in full force and effect. The Management Agreement has been duly authorized, executed and delivered by each of the Articles Supplementary, will be validly issued, fully paid and nonassessable, Company and the issuance Operating Partnership and constitutes a valid and legally binding agreement of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except to the extent enforceability may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws.
(s) There are no legal or governmental proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened, against the Company, the Operating Partnership or any of their subsidiaries or to which the Company, the Operating Partnership or any of their subsidiaries or any of the Properties are subject, that are required to be described in the Registration Statement and the Prospectus (or any amendment or supplement thereto) but are not described as required. Except as described in the Registration Statement and the Prospectus, there are no actions, suits, inquiries, proceedings or investigations by or before any court or governmental or other regulatory or administrative agency or commission pending or, to the knowledge of the Company and the Operating Partnership, threatened against or involving the Company, the Operating Partnership or any of their subsidiaries, which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or prevent or adversely affect the transactions contemplated by this Agreement, nor, to the knowledge of the Company and the Operating Partnership, is there any basis for any such shares of Common Stock will not be subject toaction, suit, inquiry, proceeding or investigation. There are no agreements, contracts, indentures, le
Appears in 1 contract
Sources: Equity Distribution Agreement (Alpine Income Property Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent to, and agree with, Manager that as of the date hereof, of this Agreement and as of each Representation Date (as defined in Section 7(n) below) on which a certificate is required to be delivered pursuant to Section 7(q)7(n) of this Agreement, as of each Settlement Date and as of each Applicable Time (as defined in Section 20(a)) as the time of each sale of any Placement Shares pursuant to this Agreementcase may be:
(a) No order preventing or suspending The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as offering of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make Shares contemplated hereby. At the statements therein, in the light time of the circumstances under which they were made, not misleading; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness initial filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under of the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under of the Securities Act, Act and (D) as of at the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under of the Securities Act (Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405”)).
(c) 405 of the Securities Act. The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) 405 of the Securities Act, and the Securities Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) of the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(b) The Registration Statement became effective upon filing with under Rule 462(e) of the CommissionSecurities Act on May 29, 2009, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued by under the Commission, Securities Act and no proceeding proceedings for that purpose have been instituted or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated are pending or, to the knowledge of the Company and the Operating PartnershipCompany, threatened are contemplated by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretorequest on the part of the Commission for additional information has been complied with.
(c) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act and otherwise complied with the requirements of Rule 163 of the Securities Act, including without limitation the legending requirement.
(d) The Company has delivered to Manager one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Manager has reasonably requested. The Prospectus delivered to Manager for use in connection with the offering of its applicable effective date Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to Agents Manager pursuant to Rule 430B(f)(2) and at each Settlement Dateof the Securities Act, as the case may be, the Registration Statement complied and will comply as to form in all material respects with the requirements of the Securities Act, and did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; . The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to Manager, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”), or Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. (“Cantor”, together with ▇▇▇▇▇▇▇ ▇▇▇▇▇, the “Alternate Managers,” and the Alternate Managers and Manager are collectively referred to as the “Managers”) furnished to the Company in writing by any Manager expressly for inclusion in any of the aforementioned documents.
(f) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date of hereof, and at each Representation Date, as the Prospectus and any amendment case may be, included or supplement thereto, will not contain any include an untrue statement of a material fact or omitted 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; provided. The preceding sentence does not apply to statements in or omissions from the Prospectus, howeveras amended or supplemented, that in reliance upon and in conformity with written information relating to the Managers furnished to the Company and in writing by the Operating Partnership make no representation and warranty with respect to Managers expressly for inclusion in any Agent Information. The documents incorporated, or to be incorporated, of the aforementioned documents.
(g) Each document incorporated by reference in the Registration Statement and or the ProspectusProspectus heretofore filed, at the time when it was filed (or, if any amendment with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer respect to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any such document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each was filed, when such Issuer Free Writing Prospectus complied and will comply amendment was filed), conformed in all material respects with the Securities requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to the extent required therebyany such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(h) Each issuer free writing prospectus (as defined in Rule 433), as of its issue date and as of each Applicable Time did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document incorporated by reference therein deemed to be a part thereof that has not been superseded or modified and, when taken together modified. The foregoing sentence does not apply to statements in or omissions from any issuer free writing prospectus based upon and in conformity with the Prospectus accompanying, or delivered prior written information furnished to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized Managers specifically for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writinguse therein.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries stock of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by validly issued, are fully paid and nonassessable and have been issued in compliance with applicable federal and state securities laws. None of the Company and accepted for record with the Maryland State Department Company’s outstanding shares of Assessments and Taxation Common Stock or preferred stock (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions ”) were issued in violation of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan any preemptive rights, rights of Distribution” insofar as such statements summarize agreements, documents first refusal or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is other similar rights; except as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects is not a party to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no or bound by any outstanding options, warrants or other similar rights to purchasesubscribe for, agreements or other contractual obligations to issue, sell, transfer or rights to convert acquire, any obligations of its capital stock or any securities convertible into or exchange exchangeable for any securities for, units of partnership interest in such capital stock; the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be issued and sold by the Company hereunder have been duly authorized and, when issued and delivered against full payment therefore therefor in accordance with the terms of this Agreement, hereof will be validly issued, fully paid and non-assessable, nonassessable and the issuance of such Placement Shares will not be subject to or in violation free of any preemptive rights, rights of first refusal or other or similar rights. Upon payment ; the capital stock (including the Shares) of the purchase price Company conforms to the description thereof contained in the Prospectus; and issuance and the delivery of the Placement Shares to be issued and being sold by the Company in accordance herewith, against payment therefor pursuant to the purchasers thereof terms of this Agreement will receive good, pass valid and marketable title to such Placement Sharesthe Shares being sold by the Company, free and clear of all Liensany claim, encumbrance or defect in title, and without notice of any lien, claim or encumbrance. The certificates, if any, to be certificates used by the Company to evidence the Placement Shares will be Common Stock or the Preferred Stock are in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement valid and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEsufficient form.
(uj) The shares of Common Stock initially issuable upon conversion Immediately after the transactions contemplated by this Agreement, all of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, and outstanding Common Units (as defined below) will be validly issued, fully paid and nonassessable. Immediately after the transactions contemplated by this Agreement, none of the outstanding common units of limited partnership interest in the Operating Partnership (“Common Units”) or preferred units of limited partnership interest in the Operating Partnership (“Preferred Units”) has been or will be issued or is owned or held in violation of any preemptive right, right of first refusal or other similar right; and the outstanding Common Units and Preferred Units have been or will be offered, sold and issued by the Operating Partnership in compliance with applicable federal and state securities laws.
(k) Each of the Company and its subsidiaries is duly organized and validly existing in good standing under the laws of the state of its incorporation or organization with full corporate, partnership or entity power and authority, as the case may be, to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify has not had or will not have a material adverse effect on the condition (financial or other), business, properties, or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”). The Company is the sole general partner of the Operating Partnership, and the Company owns a percentage interest in the Operating Partnership disclosed in the Prospectus. Except as described above, the Company or the Operating Partnership is the sole direct or indirect owner of all of the equity interests in each of the subsidiaries other than the Operating Partnership, Mid-America Multifamily Fund I, LLC and Mid-America Multifamily Fund II, LLC.
(l) The outstanding equity interests of each of the Company’s subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interests, liens, encumbrances, equities or claims. The Company does not have any subsidiaries and does not own a material interest in or control, directly or indirectly, any other corporation, partnership, joint venture, association, trust or other business organization, except as set forth in Exhibit 21 to the Company’s most recent Annual Report on Form 10-K incorporated by reference into the Registration Statement. As used in this Agreement, subsidiaries shall mean direct and indirect subsidiaries of the Company.
(m) Except as described in the Prospectus, there is no action, suit, inquiry, proceeding or investigation by or before any court or governmental or other regulatory or administrative agency or commission pending or, to the knowledge of the Company, threatened, against or involving the Company or its subsidiaries, which would individually or in the aggregate prevent or adversely affect the transactions contemplated by this Agreement or reasonably be expected to result in a Material Adverse Effect. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Prospectus or to be filed as an exhibit to the Registration Statement that are not described, filed or incorporated by reference in the Registration Statement and the Prospectus as required by the Securities Act. All such contracts to which the Company or any of its subsidiaries is a party have been duly authorized, executed and delivered by the Company or the applicable subsidiary, constitute valid and binding agreements of the Company or the applicable subsidiary and are enforceable against the Company or the applicable subsidiary in accordance with the terms thereof, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, or other laws of general applicability relating to or affecting creditors’ rights generally or by general equity principles. Neither the Company nor the applicable subsidiary has received notice or been made aware that any other party is in breach of or default to the Company or its subsidiaries under any of such contracts.
(n) Neither the Company nor any of its subsidiaries is (i) in violation of (A) its Organizational Documents (as defined in Section 20 below), (B) to the Company’s knowledge any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of its subsidiaries, the violation of which would reasonably be expected to have a Material Adverse Effect or (C) any decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries; or (ii) in default in the performance of any obligation, agreement or condition contained in (A) any bond, debenture, note or any other evidence of indebtedness or (B) any agreement, indenture, lease or other instrument (each of (A) and (B), an “Existing Instrument”) to which the Company or any of its subsidiaries is a party or by which any of their properties may be bound, which default would reasonably be expected to have a Material Adverse Effect; and, to the Company’s knowledge, there does not exist any state of facts that constitutes a default or an event of default on the part of the Company or any of its subsidiaries as defined in such documents or that, with notice or lapse of time or both, would reasonably be expected to constitute such a default or event of default which would have a Material Adverse Effect.
(o) The Company and the Operating Partnership have full legal right, power and authority to enter into and perform this Agreement and to consummate the transactions contemplated herein, including the issuance, sale and delivery of the Shares as provided herein and the Operating Partnership’s issuance of such shares the Common Units to the Company. The Company’s and the Operating Partnership’s execution and delivery of Common Stock will not this Agreement and the performance by the Company and the Operating Partnership of their obligations under this Agreement have been duly and validly authorized by the Company and the Operating Partnership and this Agreement has been duly executed and delivered by the Company and the Operating Partnership, and constitutes a valid and legally binding agreement of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except to the extent enforceability may be subject tolimited by bankruptcy, insolvency, reorganization, or other laws of general applicability relating to or affecting creditors’ rights generally or by general
Appears in 1 contract
Sources: Sales Agreement (Mid America Apartment Communities Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and Each of the Operating PartnershipTransaction Entities, jointly and severally, represent represents and warrant warrants to the Agent that each Underwriter as of the date hereof, as of each Representation the Firm Shares Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Option Shares pursuant to this AgreementClosing Date (if any), as follows:
(a) No order preventing or suspending On the use of Effective Date, the Prospectus has been issued by the CommissionRegistration Statement complied, and on the date of the Prospectus, as of its date and as of the date of any post-effective amendment to the Registration Statement becomes effective, the date any supplement or supplement amendment to the Prospectus is filed with the Commission and on any Settlement each Closing Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statement, the Prospectus (Band any amendment thereof or supplement thereto) at will comply, in all material respects, with the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) requirements of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of and the Rules and the Securities and Exchange Act or form of prospectus)1934, as amended (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities “Exchange Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been rules and remain eligible for registration by regulations of the Company on such automatic shelf registration statementCommission thereunder. The Registration Statement became effective upon filing with At the Commission. No order suspending Effective Date, at the effectiveness of date hereof and at the Closing Date, the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . Each of (i) the General Disclosure Package (as defined below) as of the date Applicable Time and at the Closing Date and on each Option Closing Date, (ii) any electronic road show or investor presentation (including without limitation any “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act) delivered to and approved by the Underwriters for use in connection with the marketing of the Prospectus and any amendment or supplement theretoOffering (collectively, will not contain 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 “Marketing Materials”) as of the circumstances under which they were madetime of their use and at the Closing Date and on each Option Closing Date, not misleading; provided, however, that the Company if any and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and (iii)) the Prospectus, as amended or supplemented, as of its date, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus filing pursuant to Section 2(a)(10)(aRule 424(b) of the Securities Act or Rule 134 under the Securities Act or (ii) and at the Closing Date and on each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)Option Closing Date, and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusif any, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided. Notwithstanding the foregoing, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as none of the eligibility determination date for purposes of Rules 164 representations and 433 under warranties set forth above in this paragraph 2(a) shall apply to statements in, or omissions from, the Securities Act with respect to Registration Statement, any Preliminary Prospectus or the offering Prospectus made in reliance upon, and in conformity with, information herein or otherwise furnished in writing by the Representative on behalf of the Placement Shares contemplated by several Underwriters specifically for use in the Registration Statement and Statement, any Preliminary Prospectus or the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be. With respect to the preceding sentence, its property and to operate its property and conduct its business as described the Company acknowledges that the only information furnished in writing by the Representative on behalf of the several Underwriters for use in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus: (i) the second paragraph under the heading “Commissions and Expenses” and (ii) the first and third paragraphs under the heading “Price Stabilization, Short Positions and Penalty Bids” (collectively, the “Underwriter Information”). Each preliminary prospectus delivered to the Underwriters for use in connection with the Offering and the Prospectus and is duly qualified was or will be identical to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationelectronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of permitted by Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” T. As used in this Section and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company elsewhere in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to:
Appears in 1 contract
Sources: Underwriting Agreement (Medalist Diversified REIT, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to to, and agree with, each of the Agent Agents, the Forward Purchasers and the Forward Sellers that as of the date hereof, of this Agreement and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information Applicable Time (as defined in Section 9(a23(a) hereof):
(a) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby. The Company meets the definition of an “experienced issuer” under Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5110(j)(6). The Company is not an “ineligible issuer,” as defined in Rule 405 of the Securities Act.
(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 Securities Act (whether such amendment was by post-effective amendment, amendment or incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or in the form of a 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) under the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereofApplicable Time, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”Act)).
(c) . The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) , and the Securities Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of any Registration Statement that is an automatic shelf registration statement. The Registration Statement became effective upon filing Company has paid, or if the Prospectus Supplement has not yet been filed with the Commission. No Commission will pay, the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the filing fee table exhibit required by Item 601(b)(107) of Regulation S-K).
(b) Following its effectiveness, no stop order suspending the effectiveness of the Registration Statement has been issued by under the Commission, Securities Act and no proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act against the Company have been instituted or related to the offering of the Placement Shares has been initiated are pending or, to the knowledge of the Company and the Operating PartnershipCompany, threatened are contemplated by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretorequest on the part of the Commission for additional information has been complied with.
(c) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act and otherwise complied with the requirements of Rule 163 of the Securities Act, including without limitation the legending requirement.
(d) The Company has delivered to the Agents, the Forward Purchasers and the Forward Sellers one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Agents, the Forward Purchasers and the Forward Sellers have reasonably requested. The Prospectus delivered to the Agents, the Forward Purchasers and the Forward Sellers for use in connection with the offering of its applicable effective date Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to Agents the Agents, the Forward Purchasers and the Forward Sellers pursuant to Rule 430B(f)(2) and at each Settlement Dateof the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; . The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and as in conformity with written information relating to the Agents, the Forward Purchasers or the Forward Sellers furnished to the Company in writing by the Agents, the Forward Purchasers or the Forward Sellers or any of their representatives or agents expressly for inclusion in any of the date of aforementioned documents. The Company hereby acknowledges that the only information that the Agents, the Forward Purchasers and the Forward Sellers have furnished to the Company expressly for use in the Registration Statement, the Prospectus and or any Free Writing Prospectus (or any amendment or supplement thereto) is the following information (i) the names of the Agents, the Forward Purchasers and the Forward Sellers on the front and back covers of the Prospectus (ii) the second sentence of the third paragraph under the caption “Plan of Distribution (Conflicts of Interest) – Sales Through Sales Agents,” and (iii) the second sentence of the fourth paragraph under the caption “Plan of Distribution (Conflicts of Interest) – Conflicts of Interest,” (the “Agent Information”).
(f) The Prospectus and any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, and at each Representation Date, as the case may be, complied and will not contain comply in all material respects with the requirements of the Securities Act. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, and at each Representation Date, as the case may be, included or will include an untrue statement of a material fact or omitted 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; provided, provided however, that the foregoing representations and warranties of this Section 6(f) shall not apply to statements or omissions in any such document made in reliance on information furnished to the Company and the Operating Partnership make no representation and warranty with respect to any which is Agent Information. .
(g) The documents incorporated, or to be incorporated, incorporated by reference in the Registration Statement and the Prospectus, at or any amendment or supplement thereto (the time filed with the Commission“Disclosure Documents”), complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 when they became effective under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by were filed under the Agent. Each such Issuer Free Writing Prospectus complied and will comply Exchange Act, conformed in all material respects with the requirements of the Securities Act (or the Exchange Act, as applicable. Further, no such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. However, the foregoing representations and warranties in this Section 6(g) shall not apply to statements or omissions in any document made in reliance on information furnished to the extent required thereby)Company which is Agent Information.
(h) Each Free Writing Prospectus, as of its issue date and as of each Applicable Time, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document incorporated by reference therein deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 misleadingmodified; provided, provided however, that the foregoing representations and warranties of this Section 6(h) shall not apply to statements or omissions in any such document made in reliance on information furnished to the Company and the Operating Partnership make no representation and warranty with respect to any which is Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, the Underwriters as set forth below in this Section 1:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the Agent that knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(b) The Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, and the rules and regulations of the Commission thereunder. The documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(c) The Registration Statement, as of each Representation Date effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof and at the Closing Time or any Option Closing Time, each as defined below) on which herein, did not, and does not contain an untrue statement of a certificate is material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to Section 7(qmake the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of the applicable filing date, the date hereof and at the Closing Time and on each Option Closing Time (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 7(b) hereof); the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) As of 3:45 p.m. (Eastern time) on June 3, 2021 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending Offered Securities and at the use of Closing Time and each Option Closing Time, the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did Disclosure Package will not, does not and will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statementissue date or date of first use and at all subsequent times through the Initial Sale Time, (B) each Issuer Free Writing Prospectus did not, and at the time of the most recent amendment thereto for the purposes each sale of complying with Section 10(a)(3) of the Offered Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) and at the time the Company or any person acting on its behalf (within the meaningClosing Time and each Option Closing Time, for this clause onlyeach such Issuer Free Writing Prospectus will not, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is contain an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporated, statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to be incorporated, by reference the Company expressly for use therein (that information being limited to that described in the Registration Statement last sentence of the first paragraph of Section 7(b) hereof).
(e) In connection with this offering, the Company has not offered and will not offer the Offered Securities in a manner in violation of the Securities Act; and the Company has not distributed and will not distribute any offering material in connection with the offer and sale of the Offered Securities except for the Preliminary Prospectus, the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) or the Registration Statement or for communications satisfying the requirements of the Securities Act or Rule 134 under the Securities Act or Act.
(iif) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with (including the Securities Act (to the extent required therebyFinal Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Offered Securities did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(eg) The Company was not an “ineligible issuer” (as defined is eligible to use Free Writing Prospectuses in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and Act; any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the rules Commission in accordance with the requirements of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Securities Act; and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and each Free Writing Prospectus that the Company has not received any notice from filed, or is required to file, pursuant to Rule 433(d) under the NYSE regarding Securities Act or that was prepared by or on behalf of or used by the revocation of such listing Company complies or otherwise regarding will comply in all material respects with the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge requirements of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filedSecurities Act.
(h) To Except for the knowledge Issuer Free Writing Prospectuses identified in Schedule II hereto, the information set forth on Exhibit A and any electronic road show relating to the offering and sale of the Offered Securities contemplated herein, the Company has not prepared, used or referred to, and will not, without the Operating Partnership, there are no affiliations or associations between (i) any member prior consent of the Financial Industry Regulatory AuthorityRepresentatives, Inc. (“FINRA”)prepare, and (ii) the Company use or refer to, any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Free Writing Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporatedPreliminary Prospectus, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriters for use in connection with the public offering of the Offered Securities contemplated herein have been and is in good standing as a foreign corporation in each jurisdiction in which will be identical to the conduct versions of its business or its ownership or leasing of property requires such qualificationdocuments transmitted to the Commission for filing via E▇▇▇▇, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects permitted by Regulation S-T of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Securities Act.
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in Company filed the Registration Statement and with the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCommission before using any Issuer Free Writing Prospectus.
(k) Each “significant subsidiary” The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus.
(as defined in Rule 1-02(wl) of Regulation S-X) of the Company There are no persons with registration or other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organizedsimilar rights to have any equity or debt securities, is validly existing as a corporationincluding securities which are convertible into or exchangeable for equity securities, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority registered pursuant to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned otherwise registered by the Company or the Operating Partnership directly under the Securities Act, all of which registration or indirectlysimilar rights are fairly summarized in the Registration Statement, free the Prospectus and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly takenDisclosure Package.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company as of March 31, 2021 is as set forth under the heading “Capitalization” in the Registration Statement Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, agreements or employee benefit plans or dividend reinvestment the exercise of convertible or stock purchase plans exchangeable securities or options, in each case referred to in the Registration Statement Statement, the Disclosure Package and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized All of the issued and outstanding shares of capital stock of the Company conforms have been duly authorized and will validly issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and the requirements of the New York Stock Exchange, Inc. (the “NYSE”) and were not issued in violation of any preemptive, right of first refusal, or similar right. Attached as Schedule III is a true and complete list of each entity (other than a securitization entity) in which the Company has a direct or indirect majority equity or voting interest that is consolidated with the Company for financial reporting purposes under U.S. generally accepted accounting principles (each, a “Subsidiary” and, together, “Subsidiaries”). All of the issued and outstanding equity interests of each Subsidiary that is a significant subsidiary within the meaning of Regulation S-X (each, a “Significant Subsidiary” and, together, the “Significant Subsidiaries”) have been duly and validly authorized and issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and, if any of its securities are listed on the NYSE, the requirements of the NYSE, were not issued in violation of any preemptive, right of first refusal, or similar right and, except as set forth in the Disclosure Package and the Prospectus, or otherwise specified in Schedule III, are owned, directly or indirectly, by the Company free and clear of all liens. There are no outstanding options, warrants or other rights to acquire or purchase, or instruments convertible into or exchangeable for, any equity interests of the Company or any Subsidiary, except as set forth in the Disclosure Package and the Prospectus or held by the Company or any of its Subsidiaries.
(n) Each of the Company and each Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its property and to conduct its business, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, management, financial position, results of operations or prospects of the Company and the Subsidiaries taken as a whole (a “Material Adverse Effect”) or on the performance by the Company or the Operating Partnership of its obligations under this Agreement.
(o) The Offered Securities or the shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”) initially issuable upon conversion of the Offered Securities (the “Conversion Securities”) conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement Statement, the Prospectus and the Disclosure Package; and the statements in the Registration Statement, the Disclosure Package and the Prospectus under the headings “Additional U.S. Federal Income Tax Considerations” and “U.S. Federal Income Tax Considerations” fairly summarize in all material respects the legal matters therein described.
(p) The execution and delivery of, and the performance by each of the Company and the Operating Partnership of its obligations under (including the issuance and sale of the Offered Securities and the use of proceeds from the sale of the Offered Securities as described in Disclosure Package and the Prospectus under the caption “Description Use of Common Proceeds” and Preferred Stock.”
(r) Except as described in any issuance of the Registration Statement Conversion Securities), this Agreement have been duly and validly authorized by the Company and the ProspectusOperating Partnership, 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, units of partnership interest in and this Agreement has been duly executed and delivered by the Company and the Operating Partnership (“OP Units”) or other ownership interests in and, assuming due authorization, execution, delivery, validity, legally binding effect and enforceability hereof by you and thereof by the counterparties thereto, this Agreement constitutes the valid and legally binding agreements of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership are outstandingin accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s and the Operating Partnership’s obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law. The Articles Supplementary to the Company’s charter setting forth the terms of the Series E Preferred Stock (the “Articles Supplementary”) will be, prior to the Closing Date, duly authorized, executed and filed by the Company with the State Department of Assessments and Taxation of the State of Maryland (the “SDAT”).
(s) Except as described in the Registration Statement 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.
(tq) The Placement Shares Offered Securities to be sold by the Company under this Agreement have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment therefore in accordance with of the terms of this Agreementconsideration set forth herein, will be validly issued, fully paid and non-assessablenonassessable; and, and to the knowledge of the Company, the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment and sale of the purchase price and issuance and delivery of the Placement Shares Offered Securities to be issued and sold by the Company in accordance herewithunder this Agreement are not subject to any preemptive rights, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear rights of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, first refusal or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements other similar rights of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, any securityholder of the Company and the requirements of the NYSE.
(u) or any other person. The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock Conversion Securities have been duly authorized and, when issued upon conversion of the Series D Preferred Stock Offered Securities in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessablenonassessable and will be issued in compliance with all applicable foreign, state and the issuance of such shares of Common Stock federal securities and “blue sky” laws; and will not be issued in violation of any preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company or any other person. The board of directors of the Company has duly and validly reserved such Conversion Securities for issuance upon conversion of the Offered Securities.
(r) The Company has taken all necessary actions to ensure that the Offered Securities will be approved for listing on the NYSE, subject toto official notice of issuance; the Company has taken all necessary actions to ensure that, upon and at all times after the NYSE approves the Offered Securities for listing, the Company is and will be in compliance in all material respects with all applicable corporate governance requirements set forth in the NYSE’s listing standards that are then in effect. The Company has filed or, prior to the listing of the Offered Securities on the NYSE, will file with the Commission a Form 8-A providing for the registration under the Exchange Act of the Offered Securities.
(s) The Management Agreement pursuant to which the Manager acts as the manager and adviser of the Company, the Operating Partnership and their
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent represent, warrant and warrant covenant to the Agent that Manager as of the date hereof, hereof and as of each Representation Date (as defined below) on which a certificate is certificates are required to be delivered pursuant to Section 7(q)8(o) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agrees with the time of each sale of any Placement Shares pursuant to this AgreementManager, as follows:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have has been and remain eligible for registration declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares Securities has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany, threatened by the Commission.
(b) At the time of initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated reported filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities, on the date hereof and on each Representation Date, as of each Applicable Time and as of each Settlement Date, the Company was not, is not and will not be (as the case may be) an “ineligible issuer” (as defined in Rule 405 under the Securities Act (without taking into account any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer)) in connection with the offering of the Securities pursuant to Rules 164, 405 and 433 under the Securities Act.
(c) The Registration Statement and the Prospectus, when filed and as of their respective dates, complied in all material respects with the Securities Act and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copies thereof delivered to the Manager for use in connection with the offer and sale of the Securities. The Registration Statement, as of the date hereof, Statement and any post-effective amendment thereto, as of its applicable at the time it became effective date and at each deemed effective date with respect to Agents the Manager pursuant to Rule 430B(f)(2) of the Securities Act and at each Settlement Date, complied and will comply in all material respects with the Securities Act, Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and .
(d) The Registration Statement did not as of the its effective date of the Prospectus and any amendment or supplement thereto, will not contain any 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; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of the Manager specifically for inclusion therein.
(e) Any documents incorporated by reference into the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(f) The Prospectus will not, as of its date and on each Representation Date, as of each Applicable Time and as of each Settlement Date, 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, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, Representative by or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements on behalf of the Exchange ActManager specifically for inclusion therein.
(dg) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than including, without limitation, any “road show” (as referred to defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in that is a free writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with prospectus under Rule 433 under the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, Act) did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eh) The Company was not an “ineligible issuer” (as defined Each Issuer Free Writing Prospectus conformed or will conform in Rule 405) as all material respects to the requirements of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Securities that would constitute an Issuer Free Writing Prospectus without the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge prior written consent of the Company, there are no contracts or documents of a character which are Manager. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingSecurities Act.
(i) The Company has been not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Securities, will not distribute any offering material in connection with the offering or sale of the Securities other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus to which the Manager has consented, which consent will not be unreasonably withheld or delayed, or that is required by applicable law or the listing maintenance requirements of the NYSE.
(j) The capitalization of the Company is as set forth in the Registration Statement and the Prospectus. All the outstanding shares of capital stock of the Company have been, and as of each Settlement Date, will be, duly incorporatedauthorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement and the Prospectus; except as described in the Registration Statement and the Prospectus, the Company is not a party to or bound by any outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such capital stock.
(k) Each of the Company, the Operating Partnership and their subsidiaries is duly formed or organized and validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties and to operate its property and conduct its business as presently conducted and as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to so register or qualify would not, individually or in the aggregate, reasonably be so qualified or be in good standing would not (i) expected to have a material adverse effect on the assetscondition, business, condition (financial or otherwise), earnings, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, whole (financial or otherwise) (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder (including the issuance and sale of the Securities and the use of proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”), and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(nm) The Articles Supplementary Securities to be purchased by the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Manager pursuant to this Agreement have been duly authorized for issuance, sale and duly executed delivery and, when issued and delivered by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization pursuant to this Agreement against payment of the Company is as consideration set forth in the Registration Statement herein, will be validly issued, fully paid and the Prospectus (nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to as disclosed in the Registration Statement and the Prospectus, the issuance of such Securities will not be subject to any preemptive, co-sale right, registration right, right of first refusal or similar rights.
(iiin) pursuant All of the issued and outstanding shares of capital stock of the Company: (i) have been duly authorized and validly issued, are fully paid and nonassessable and (ii) have been issued in compliance with federal and state securities laws.
(o) All of the issued and outstanding OP Units and the Series A Preferred Units have been duly authorized for issuance by the Operating Partnership and its general partner and validly issued. The terms of the OP Units and the Series A Preferred Units conform in all material respects to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to descriptions related thereto in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be . Except as disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Prospectus: (i) no OP Units or Series A Preferred Stock.”
Units are reserved for any purpose, (qii) The Common there are no outstanding securities convertible into or exchangeable for any OP Units or Series A Preferred Stock and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units, Series A Preferred Units or any other securities of the Operating Partnership. Any prior offers and sales of the OP Units and Series D A Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as Units described in the Registration Statement and the Prospectus, no optionshave been offered and sold in transactions exempt from the registration requirements of the Securities Act, warrants the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and blue sky laws. None of the OP Units or Series A Preferred Units were issued in violation of the preemptive or other similar rights to purchase, agreements or other obligations to issue, or rights to convert of any obligations into or exchange any securities for, units holder of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstandingPartnership.
(sp) Except as described in the Registration Statement 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, The shares of capital stock Common Stock initially issuable upon conversion of or ownership interests in the Company are outstanding.
(t) The Placement Shares to be sold by the Company Series A Preferred Stock have been duly authorized and, when issued and delivered against payment therefore upon conversion of the Series A Preferred Stock in accordance with the terms of this Agreementthe Articles Supplementary to the Company’s charter setting forth the terms of the Series A Preferred Stock, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares shares of Common Stock will not be subject to or in violation of any preemptive or similar rights. Upon payment The Board of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, Directors of the Company has duly and the requirements of the NYSE.
(u) The validly reserved such shares of Common Stock initially issuable for issuance upon conversion of the Series D A Preferred Stock.
(q) With respect to stock options, share awards (including restricted common stock and restricted stock units), stock appreciation rights, dividend equivalent rights, performance awards, annual incentive cash awards and/or other equity-based awards (the “Equity Incentive Awards”) granted pursuant to the stock-based compensation plans of the Company and its subsidiaries, including without limitation the Company’s 2020 Long Term Incentive Plan (the “Company Stock have been Plans”), (i) each Equity Incentive Award intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) so qualifies, (ii) each grant of an Equity Incentive Award was duly authorized andno later than the date on which the grant of such Equity Incentive Award was by its terms to be effective by all necessary corporate action, when issued upon conversion including, as applicable, approval by the board of directors of the Series D Preferred Stock Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Articles SupplementaryCompany Stock Plans, will be the Securities Act and all other applicable laws and regulatory rules or requirements, including the rules of the NYSE and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States applied on a consistent basis in the financial statements (including the related notes) of the Company and disclosed in filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Equity Incentive Awards prior to, or otherwise coordinating the grant of Equity Incentive Awards with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(r) All of the issued and outstanding units (“Subsidiary OP Units”) of NREF OP I, LP, NREF OP II, LP and NREF OP IV, LP (collectively, the “Subsidiary Partnerships”) have been duly authorized for issuance by the Subsidiary Partnerships and their general partner and validly issued, fully paid and nonassessable, . The terms of the Subsidiary OP Units conform in all material respects to the descriptions related thereto in the Registration Statement and the issuance Prospectus. Except as disclosed in the Registration Statement and the Prospectus: (i) no Subsidiary OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any Subsidiary OP Units and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for Subsidiary OP Units or any other securities of such shares the Subsidiary Partnerships. Any prior offers and sales of Common Stock will the Subsidiary OP Units described in the Registration Statement the Prospectus, have been offered and sold in transactions exempt from the registration requirements of the Securities Act, the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and blue sky laws. None of the Subsidiary OP Units were issued in violation of the preemptive or other similar rights of any holder of the Subsidiary Partnerships.
(s) There are no legal or governmental proceedings pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against the Company, the Operating Partnership or their subsidiaries or to which the Company or its subsidiaries or any of their properties are subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement thereto) but are not be subject todescribed as required. Except as described in the Registration Statement and the Prospectus, there are no actions, suits, inquiries, proceedings or investigations by or before any court or governmental or other regulatory
Appears in 1 contract
Sources: Equity Distribution Agreement (NexPoint Real Estate Finance, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Company’s operating partnership, MPT Operating Partnership, L.P., a Delaware limited liability partnership and majority-owned subsidiary of the Company (the “Operating Partnership”), jointly and severally, severally represent and warrant to and agree with the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementManager that:
(a) No order preventing or suspending An automatic shelf registration statement on Form S-3 (File No. 333-208813) (the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a“registration statement”) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively called the “Rule 405Act”), including a form of prospectus, has been prepared and filed by the Company not earlier than three years prior to the date hereof, in conformity with the requirements of the Act, and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder (the “Rules and Regulations”).
(c) . The Registration Statement is registration statement contains certain information concerning the offering and sale of the Common Stock, including the Shares, and contains additional information concerning the Company and its business; the Commission has not issued an “automatic shelf registration statement” order preventing or suspending the use of the Basic Prospectus (as defined in Rule 405below), the Prospectus Supplement (as defined below), the Prospectus (as defined below) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending or any Permitted Free Writing Prospectus (as defined below), or the effectiveness of the Registration Statement has been issued by the Commission(as defined below), and no proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has have been initiated instituted or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, threatened by the Commission. The Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the date hereofAct, and as such section applies to the Manager, as well as any new registration statement, post-effective amendment theretoor new automatic shelf registration statement as may have been filed pursuant to Sections 4(g) or (h) of this Agreement, including (1) all documents filed as of its applicable effective date and at each a part thereof or incorporated or deemed effective date to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with respect to Agents the Commission pursuant to Rule 430B(f)(2424(b) and at each Settlement Date, complied and will comply in all material respects with under the Securities Act, and did not and will not contain any untrue statement of a material fact to the extent such information is deemed, pursuant to Rule 430B or omit to state a material fact required Rule 430C under the Act, to be stated therein part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Manager and (3) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of each Registration Statement, together with any amendments or necessary in order to make the statements therein not misleading; and supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus and any amendment Supplement,” as used herein, means the final prospectus supplement, relating to the Shares, filed or supplement thereto, will not contain any untrue statement of a material fact to be filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or omit to state a material fact necessary in order to make before the statements thereinsecond business day after the date hereof (or such earlier time as may be required under the Act), in the light of the circumstances under which they were made, not misleading; provided, however, that form furnished by the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents Manager in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects connection with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated Shares. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoing, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Manager by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized Company for listing on the NYSE, subject to official notice of issuance and the Company is use in material compliance connection with the rules offering and sale of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice Shares which differs from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Basic Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and leaseProspectus Supplement or Prospectus, as the case may bebe (whether or not such revised basic prospectus, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and prospectus supplement or prospectus is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure required to be so qualified or be in good standing would not (i) have a material adverse effect on filed by the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred Company pursuant to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X424(b) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the ProspectusAct), the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, terms “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred StockBasic Prospectus,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,Prospectus Supplement” and “Plan of DistributionProspectus” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title shall refer to such Placement Sharesrevised basic prospectus, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, prospectus supplement or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toprospectus,
Appears in 1 contract
Sources: Equity Distribution Agreement (Medical Properties Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and Crescent Real Estate Equities Limited Partnership, a Delaware limited partnership (the Operating Partnership"OPERATING PARTNERSHIP"), jointly and severally, represent and warrant to the Agent that you as of the date hereofhereof and to you and each of the other International Underwriters named in the applicable International Terms Agreement as of the date thereof (in each case, an "INTERNATIONAL REPRESENTATION DATE"), as of follows:
(i) The Registration Statement and the International Prospectus, at the time the Registration Statement became effective, complied, and at each International Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)will comply, in all material respects, with the requirements of the 1933 Act and the 1933 Act Regulations; the Registration Statement, at the time the Registration Statement became effective, did not, and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did International Representation Date will not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The International Prospectus, as of the date hereof does, and as of each International Representation Date (unless the term "Prospectus" refers to a prospectus that has been provided to the International Underwriters by the Company for use in connection with the offering of Registered Securities that differs from a Prospectus on file at the Commission at the time the Registration Statement became effective, in which case at the time it is first provided to the International Underwriters for such use) and at Closing Time and each Date of Delivery referred to in Sections 2(b) and 2(c) hereof, will comply in all material respects with the requirements of the Prospectus 1933 Act and any amendment or supplement theretothe 1933 Act Regulations and, as of the date hereof does not, and as of each International Representation Date will not not, contain any 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; provided, however, that the Company representations and the Operating Partnership make no representation and warranty with respect warranties in this paragraph shall not apply to any Agent Information. The documents incorporated, statements in or to be incorporated, by reference in omissions from the Registration Statement or the International Prospectus made in reliance upon and the Prospectus, at the time filed in conformity with the Commission, complied or will comply, in all respects written information furnished to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained through you specifically for inclusion in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the International Prospectus.
(fii) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”)Registration Statement or any part thereof has been issued, and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending proceeding for that purpose has been instituted or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction. No order preventing or suspending the use of the International Prospectus has been issued, and the Company no proceeding for that purpose has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stockbeen instituted or, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between by the state securities authority of any jurisdiction.
(iiii) any member Each of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, the accounting firm whose report on the financial statements and supporting schedule of the Financial Industry Regulatory Authority, Inc. (“FINRA”)Company is included in the Registration Statement, and any other accounting firm whose report on financial statements is included in the Registration Statement, is an independent public accountant as required by the 1933 Act and the 1933 Act Regulations.
(iiiv) The financial statements (including the Company notes thereto) included in the Registration Statement and the International Prospectus present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified, and except as otherwise stated in the Registration Statement, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis. The supporting schedule included in the Registration Statement presents fairly the information required to be stated therein. The financial information and data included in the Registration Statement and the International Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included in the Registration Statement and the International Prospectus and the books and records of the respective entities presented therein. The pro forma financial information included in the International Prospectus has been prepared in accordance with the applicable requirements of Rules 11-01 and 11-02 of Regulation S-X under the 1933 Act and other 1933 Act Regulations and American Institute of Certified Public Accountants ("AICPA") guidelines with respect to pro forma financial information and includes all adjustments necessary to present fairly the pro forma financial position of the respective
(v) Since the respective dates as of which information is given in the Registration Statement and the International Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, assets, business affairs or business prospects of the Company, the Operating Partnership, the Subsidiaries and the Residential Development Corporations, considered as one enterprise, whether or not arising in the ordinary course of business, (B) no material casualty loss or material condemnation or other material adverse event with respect to any real property or improvements thereon owned or leased by any of the Company, the Operating Partnership, any of its Subsidiaries or any of the Residential Development Corporations), including any property underlying indebtedness held by the Company’s officers, directors(each individually a "PROPERTY" and collectively, the "PROPERTIES"), the Operating Partnership, any of the Subsidiaries or any of the Residential Development Corporations, has occurred that is material to the Company, the Operating Partnership, the Subsidiaries and the Residential Development Corporations considered as one enterprise, (C) there have been no acquisitions or other transactions entered into by the Company, the Operating Partnership, any Subsidiary or any Residential Development Corporation other than those in the ordinary course of business that are material with respect to such entities, considered as one enterprise, or 5% or greater security holders or would result in any beneficial owner of inaccuracy in the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectusrepresentations contained in Section 1(a)(iv) above, (D) except as described in the International Prospectus and except for regular quarterly dividends or distributions on the Common Shares, there has been disclosed to the Representatives in writing.no dividend or distribution of any kind declared, paid or
(ivi) The Company has been duly incorporated, is validly existing formed as a corporation in good standing real estate investment trust under the laws of the State of Maryland, has the corporate Texas with power and authority to own own, lease and lease, as the case may be, its property and to operate its property and properties, to conduct its the business in which it is engaged or proposes to engage as described in the Registration Statement and the International Prospectus and to enter into and perform its obligations under this Agreement. According to the County Clerk of Tarrant County, Texas, the Restated Declaration of Trust of the Company is recorded in Volume 12645, beginning at Page 1811, in the records of the County Clerk. The Restated Declaration of Trust is in effect, and no dissolution, revocation or forfeiture proceedings regarding the Company have been commenced. The Company is duly qualified as a foreign organization to transact business and is in good standing as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing qualify would not (i) have a material adverse effect on the assetscondition, business, condition (financial or otherwise), or the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership Partnership, the Subsidiaries and the Subsidiaries (Residential Development Corporations considered as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)one enterprise.
(jvii) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of Delaware Revised Uniform Limited Partnership Act (the State of Delaware has the full "DELAWARE ACT") with partnership power and authority to own or leaseown, as the case may be, its property lease and to operate its property and properties, to conduct its the business in which it is engaged or proposes to engage as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement. The Operating Partnership is duly qualified to transact business or registered as a foreign partnership and is in good standing as a foreign limited partnership in each jurisdiction in which such qualification or registration is required, whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified qualify or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing register would not have a Material Adverse Effect. All of material adverse effect on the issued shares of capital stockcondition, units of limited partnership interest and units of membership interest of each Subsidiary of the Company financial or otherwise, or the Operating Partnership have been duly authorizedearnings, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stockassets,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: International Purchase Agreement (Crescent Real Estate Equities Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementUnderwriter that:
(a) No Each prospectus or preliminary prospectus included as part of the registration statement as originally filed, or as part of any amendment or supplement thereto that is related to the Shares, or filed pursuant to Rule 424 under the Act that is related to the Shares, complied when so filed in all material respects with the provisions of the Act, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use therein. The Commission has not issued any order preventing or suspending the use of the Prospectus has been issued by the Commission, and the or any Preliminary Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the .
(b) The Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At transactions contemplated by this Agreement meet the original effectiveness of the Registration Statement, (B) at the time of the most recent amendment thereto requirements for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) using Form S-3 under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement in the form in which it became or becomes effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, also in such form as of the date hereof, and it may be when any post-effective amendment thereto, as of its applicable thereto shall become effective date and at each deemed effective date the Prospectus and any supplement or amendment thereto when filed with respect to Agents pursuant to the Commission under Rule 430B(f)(2424(b) and at each Settlement Dateunder the Act, complied and or will comply in all material respects with the Securities Act, and did not provisions of the Act and will not at any such times contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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, except that the Company and the Operating Partnership make no this representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts apply to statements in or will conflict with the information contained in omissions from the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together Prospectus made in reliance upon and in conformity with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect information relating to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect Underwriter furnished to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear writing by or on behalf of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented any Underwriter through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEyou expressly for use therein.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (Apartment Investment & Management Co)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that each Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending The Company and the Operating Partnership meet the requirements for use of Form S-3, and the Prospectus Registration Statement has been issued declared effective by the Commission.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus and, if applicable, any Term Sheet to the Prospectus, as of its date and as of the date of any amendment or supplement hereof and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commissioneffective, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and when any post-effective amendment theretoto the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Preliminary Prospectus (as hereinafter defined), the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriters and Underwriters' counsel).
(c) The preliminary prospectus supplement, dated May 8, 1997, filed pursuant to Rule 424 under the Act (the "Preliminary Prospectus") and each 462(b) Registration Statement, if any, complied or will comply when so filed in all material respects with all applicable provisions of the Act; did not or will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and each Preliminary Prospectus and the Operating Partnership make no representation and warranty Prospectus delivered to the Underwriters for use in connection with respect the offering of Shares will, at the time of such delivery, be identical to any Agent Information. the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to Underwriters specifically for inclusion in the Registration Statement or Prospectus or any Agent Informationamendment or supplement thereto.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualificationMaryland. Each of the Operating Partnership, except to First Industrial Financing Partnership, L.P. (the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise"Financing Partnership"), earningsFirst Industrial Securities, propertiesL.P. ("Securities, managementL.P."), results of operations or prospects of First Industrial Mortgage Partnership, L.P. (the Company"Mortgage Partnership"), First Industrial Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P. ("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the Operating Partnership, the Operating Partnership Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein FIP are referred to collectively herein as a “Material Adverse Effect”).
(jthe "Partnership Subsidiaries") The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"), First Industrial Management Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively herein as the State "Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under and by virtue of Delaware has the laws of its jurisdiction of organization. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIDSG is a wholly-owned subsidiary of the Company and is the sole general partner of DSG. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Company and each of the Subsidiaries has, and at the Closing Date and, if later, an Option Closing Date, will have, full corporate or partnership power and authority to own or leaseauthority, as the case may be, its property to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its property and conduct its business in which it engages or proposes to engage as described in the Registration Statement and or the Prospectus and is the transactions contemplated hereby and thereby. The Company and each of the Corporate Subsidiaries is, and at the Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, except where failure to obtain such qualifications or registration will not have a material adverse effect on (i) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Company and its Subsidiaries, taken as whole or on the 379 in service properties owned, directly or indirectly, by the Company as of December 31, 1996 (the "Properties"), (ii) the issuance, validity or enforceability of the shares or the enforceability of the Deposit Agreement or (iii) the consummation of any of the transactions contemplated by this Agreement and/or the Deposit Agreement (a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Each of the Partnership Subsidiaries is, and at the Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualifications or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would registration will not have a Material Adverse Effect, which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. All Complete and correct copies of the issued shares articles of capital stock, units of limited partnership interest incorporation and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and nonby-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements charter documents, partnership agreements and other organizational documents of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock Subsidiaries and all amendments thereto as have been duly authorized and, when issued upon conversion of requested by the Series D Preferred Stock in accordance with Underwriters or their counsel have been delivered to the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toUnderwriters or their counsel.
Appears in 1 contract
Sources: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as Each of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation jointly and warranty severally represents and warrants to each of the Underwriters as follows:
(a) An automatic shelf registration statement on Form S-3 (File No. 333-230393) with respect to any Agent Information (as defined the Shares has been prepared by the Company in Section 9(a) hereof).
(A) At conformity with the original effectiveness requirements of the Registration StatementSecurities Act of 1933, as amended (B) at the time of “Act”), and the most recent amendment thereto for rules and regulations (the purposes of complying with Section 10(a)(3“Rules and Regulations”) of the Securities Act and Exchange Commission (whether the “Commission”) thereunder, has been filed with the Commission and became effective upon filing. The Company and the transactions contemplated by this equity underwriting agreement (this “Agreement”) meet the requirements and comply with the conditions for the use of Form S-3, including the transaction requirements set forth in General Instruction I.B.1 of such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of form. Such registration statement meets the Exchange 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, requirements of Rule 163(c415(a)(1)(x) under the Securities ActAct and complies in all material respects with said rule. Copies of such registration statement, including any amendments thereto, the base prospectus (meeting the requirements of the Rules and Regulations) made contained therein (the “Base Prospectus”) and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been delivered by the Company to you. Such registration statement, together with any offer relating registration statement filed by the Company pursuant to the Securities in reliance on the exemption of Rule 163 462(b) under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405462(b) Registration Statement”)).
(c) The , is herein referred to as the “Registration Statement is an “automatic shelf registration statement” (as defined Statement”, which shall be deemed to include all information omitted therefrom in Rule 405) reliance upon Rules 430A, 430B or 430C under the Act and contained in the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the CommissionProspectus referred to below. No order suspending the effectiveness of post-effective amendment to the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and filed as of the date of this Agreement. “Prospectus” means the Base Prospectus together with the final prospectus supplement filed with the Commission pursuant to and within the time limits described in Rule 424(b) under the Act. Any preliminary prospectus relating to the Shares, including any preliminary prospectus supplement relating to the Shares filed with the Commission, together with the Base Prospectus is herein referred to as a “Preliminary Prospectus”. Any reference herein to the Registration Statement, any Rule 462(b) Registration Statement, the Base Prospectus, any Preliminary Prospectus or to the Prospectus and or to any amendment or supplement thereto, will not contain to 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 foregoing documents shall be deemed to refer to and include the filing of any document under which they were madethe Securities Exchange Act of 1934, not misleading; providedas amended, however, that the Company and the Operating Partnership make no representation rules and warranty with respect to any Agent Information. The documents incorporatedregulations promulgated thereunder (the “Exchange Act”), which is or is deemed to be incorporated, incorporated by reference in the Registration Statement and Statement, the ProspectusRule 462(b) Registration Statement, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Base Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Preliminary Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described and, in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence case of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being reference herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of also shall be deemed to include any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference intherein, and any supplements or amendments thereto, filed with the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, Commission after the requirements date of filing of the Articles of Amendment and Restatement, as amended or supplemented through final prospectus supplement under Rule 424(b) under the date hereof (the “Charter”)Act, and Bylaws, as amended, prior to the termination of the Company and the requirements offering of the NYSEShares by the Underwriters.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Equity Underwriting Agreement (Invitation Homes Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to and agree with each of the Agent that as of Underwriters on the date hereof, as of on the Closing Date and on each Representation Option Closing Date (as defined below) on which a certificate is required to be delivered pursuant to in Section 7(q2 hereof), and as of the time of each sale of any Placement Shares pursuant to this Agreementif any, that:
(a) No The Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Preliminary Prospectus has been issued or the Prospectus is in effect, and no proceedings for such purpose are pending before or threatened by the Commission, and the Company has complied with any request made by the Commission for additional or supplemental information.
(b) The Preliminary Prospectus, as of its date and amended or supplemented, filed as part of the date Registration Statement or pursuant to Rule 424 under the Securities Act, when so filed, complied in all material respects with the Securities Act (including, without limitation, Rule 424 or Rule 430A under the Securities Act).
(i) The Registration Statement did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of any amendment a material fact or supplement and on any Settlement Dateomit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Registration Statement complies and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act; (iii) the Preliminary Prospectus dated [•], 2011, at the time of filing thereof, did not, does not and will not contain 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(iv) the Time of Sale Prospectus, howeverat the Time of Sale, did not, and on the Closing Date and, if applicable, each Option Closing Date, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness Time 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementSale Prospectus, as of the date hereofthen amended or supplemented, and any post-effective amendment theretoif applicable, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datewill not, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and as (v) each Permitted Free Writing Prospectus that was not superseded or modified does not conflict with the information contained in the Registration Statement, any Preliminary Prospectus, the Time of the date of Sale Prospectus or the Prospectus that was not superseded or modified and any amendment was accompanied or supplement theretopreceded by the then-most recent Preliminary Prospectus, will to the extent required by Rule 433 under the Securities Act; (vi) each road show, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedand (vii) the Prospectus (including any Prospectus wrapper), however, that as of the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time date it is filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus Commission pursuant to Section 2(a)(10)(aRule 424(b) of the Securities Act or Rule 134 under the Securities Act or (ii) Act, on the Closing Date and at each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and Option Closing Date, if any, will comply in all material respects with the Securities Act (to including, without limitation, the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with requirements of Section 10(a) of the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not Securities Act) and will not contain 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 representations and warranties set forth in this Section 1(c) do not apply to statements or omissions in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, any Permitted Free Writing Prospectus, any road show or the Prospectus (including any Prospectus wrapper) or any amendments or supplements thereto based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use therein (such information being limited to that which is defined as the Underwriters’ Information in Section 8(b) hereof).
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Preliminary Prospectus and/or the Permitted Free Writing Prospectuses. The Company has not, directly or indirectly, prepared, used or referred to any free writing prospectuses, without the prior written consent of the Representatives, other than the Permitted Free Writing Prospectuses and road shows furnished or presented to the Representatives before first use. Each Permitted Free Writing Prospectus has been prepared, used or referred to in compliance with Rule 164 and Rule 433 under the Securities Act. Assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Securities Act, filed with the Commission), the sending or giving by any Underwriter of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 under the Securities Act (without reliance upon subsections (b), (c) and (d) of Rule 164). The conditions set forth in Rule 433(b)(2) under the Securities Act are satisfied, and the Registration Statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act, including a price range where required by rule; neither the Company nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Securities Act, from using, in connection with the offer and sale of the Shares, free writing prospectuses pursuant to Rule 164 and Rule 433 under the Securities Act. Each Permitted Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act. In the case of any bona fide electronic road shows by the Company, the Company has complied with the requirements of Rule 433(d)(8)(ii) under the Securities Act. To the knowledge of the Company and the Operating Partnership make Partnership, no representation and warranty with respect to free writing prospectus prepared by or on behalf of or used by any Agent InformationUnderwriter contains any “issuer information” within the meaning of Rule 433(h)(2) under the Securities Act.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405405 under the Securities Act) as of the eligibility determination date for purposes of Rules Rule 164 and Rule 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the ProspectusStatement.
(f) The Placement Shares have been authorized are approved for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) issuance. To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”)) other than Summit Capital Partners, LLC and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the ProspectusRegistration Statement was initially filed with the Commission, except as has been disclosed to the Representatives in writingwriting or in the Registration Statement (excluding the exhibits thereto), the Time of Sale Prospectus and the Prospectus.
(ig) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, Maryland has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)Subsidiaries, taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby or in the Formation Transaction Agreements (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effectmaterial adverse effect”).
(jh) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effectmaterial adverse effect.
(ki) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) Subsidiary has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectmaterial adverse effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed described in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus, upon completion of the Formation Transactions, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, will own all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X..
(lj) The Company has the corporate power and authority to execute and deliver this Agreement and the Formation Transaction Agreements to which it is a party and to perform its obligations hereunder and thereunder, and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and such Formation Transaction Agreements and consummation by it of the transactions contemplated hereby and thereby have been duly and validly taken.
(mk) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and the Formation Transaction Agreements to which it is a party and to perform its obligations hereunder and thereunder, and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and such Formation Transaction Agreements and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly taken.
(nl) Each of the Subsidiaries other than the Operating Partnership has the corporate, partnership or limited liability company, as applicable, power and authority to execute and deliver the Formation Transaction Agreements to which each is a party and to perform its obligations thereunder, and all corporate, limited partnership or limited liability company action required to be taken by or on behalf of each such Subsidiary for the due and proper authorization, execution and delivery by each said Subsidiary of such Formation Transaction Agreements to which each is a party, and the consummation by it of the transactions contemplated thereby, have been duly and validly taken.
(m) The Articles Supplementary Formation Transaction Agreements to the Company’s Amended and Restated Articles of Incorporation setting forth the terms which each of the Series D Preferred Stock (Company and the “Articles Supplementary”) Operating Partnership and their respective Subsidiaries is a party have been duly authorized and duly executed by each of the Company and accepted for record the Operating Partnership and each such Subsidiary, as applicable, and have been, or at the Closing Date will be, duly executed and delivered by each of the Company and the Operating Partnership. The Formation Transaction Agreements to which each of the Company and the Operating Partnership and their respective Subsidiaries is a party are, or at the Closing Date will be, valid and binding agreements of the Company and the Operating Partnership and each such Subsidiary, as applicable, enforceable against the Company and the Operating Partnership and each such Subsidiary, as applicable, in accordance with their respective terms, except to the Maryland State Department extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or other similar laws relating to creditors’ rights and general principles of Assessments equity and Taxation (the “SDAT”)except as rights to indemnification and contribution thereunder may be limited by applicable law or policies underlying such law.
(on) The statements in the Registration Statement Time of Sale Prospectus and the Prospectus under the captions “Certain Relationships and Related Transactions,” “Description of Common and Preferred Capital Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Our Hotel Operating Agreements,” “Description of the Partnership Agreement,” “Shares Eligible for Future Sale,” “Material Federal Income Tax Considerations,” “ERISA Considerations” and “Plan of DistributionUnderwriting,” insofar as such statements summarize legal matters, agreements, documents or legal or governmental proceedings discussed therein, are accurate, complete and fair summaries of such legal matters, agreements, documents or legal or governmental proceedings in all material respects.
(po) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement Time of Sale Prospectus under the caption “Capitalization” and will be as set forth under the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to caption “Capitalization” in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects as to legal matters to the description thereof contained in the Registration Statement Time of Sale Prospectus and the Prospectus under the caption “Description of Common and Preferred Capital Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rp) Except as described in the Registration Statement and Statement, 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, units Time of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement Sale Prospectus 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.
(tq) The Placement Shares to be sold by Except as described in the Company have been duly authorized andRegistration Statement, when issued and delivered against payment therefore in accordance with the terms Time of this Agreement, will be validly issued, fully paid and non-assessable, Sale Prospectus and the issuance of such Placement Shares will not be subject Prospectus, no options, warrants or other rights to purchase, agreements or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares other obligations to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit toissue, or incorporated by reference inrights to convert any obligations into or exchange any securities for, OP Units or other ownership interests in the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toOpera
Appears in 1 contract
Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, severally represent and warrant to, and agree with each Manager and each Forward Purchaser that:
(a) The Company satisfies the conditions for the use of Form S-3 in connection with the offer and sale of the Shares as contemplated hereby; the Registration Statement meets, and the offer and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Registration Statement became effective upon filing pursuant to Rule 462(e) under the Act; the Commission has not issued an order preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted or, to the Agent that Company’s knowledge, threatened in writing by the Commission; the Registration Statement complied in all material respects when it became effective, complies in all material respects as of the date hereofhereof and, as amended or supplemented, will comply in all material respects at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) under the Act with the requirements of each Representation Date (as defined below) on which the Act, and the Registration Statement did not and will not, at such times, contain an untrue statement of a certificate is material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to Section 7(q)make the statements therein not misleading; the Prospectus and any amendments or supplements thereto complied or will comply in all material respects at the time the Prospectus and any amendments or supplements thereto were or will be filed with the Commission, complies in all material respects as of the date hereof (if filed with the Commission on or prior to the date hereof) and will comply in all material respects as of the time of each sale of any Placement the Shares pursuant to this Agreement:
Agreement (aeach, a “Time of Sale”) No order preventing or suspending and at each Settlement Date (as defined below) with the use requirements of the Prospectus has been issued by the CommissionAct, and the Prospectus did not and will not, at such times, 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; any Permitted Free Writing Prospectus, as of its date of issue and as of each Time of Sale and Settlement Date and at all times during which a prospectus is required by the date Act to be delivered (whether physically or through compliance with Rule 153 or Rule 172 under the Act, or in lieu thereof, a notice referred to in Rule 173(a) under the Act) in connection with any sale of any amendment or supplement and on any Settlement DateShares, did not or will not, does at such times, 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; provided, however, that the Company makes no representation or warranty with respect to any statement contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and will in conformity with information furnished in writing by or on behalf of the Managers or the Forward Purchasers expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may be; each Incorporated Document, at the time such document was filed with the Commission, complied, in all material respects, with the requirements of the Exchange Act and did not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness time of filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereofTime of Sale and at each such time this representation is repeated or deemed to be made, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”Act)).
(c) . The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) 405 under the Act, and the Securities offer and sale of the Shares have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with Company has not received from the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and Commission any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents notice pursuant to Rule 430B(f)(2401(g)(2) and at each Settlement Dateunder the Act objecting to the use of the automatic shelf registration statement form.
(c) Prior to the execution of this Agreement, complied and will comply the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in all material respects connection with the Securities offer or sale of the Shares; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and did not and will not contain any untrue the registration statement of a material fact or omit relating to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as offer of the date of the Prospectus and any amendment or supplement theretoShares contemplated hereby, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time as initially filed with the Commission, complied includes a prospectus that, other than by reason of Rule 433 or will complyRule 431 under the Act, in all respects to satisfies the requirements of Section 10 of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, Act in all material respects; the Company (including its agents has treated and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and agrees that it will not prepare, use, authorize, approve or refer to any Issuer treat each Permitted Free Writing Prospectus (other than as referred to an “issuer free writing prospectus,” as defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (ii) each electronic road show Act, and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus has complied and will comply in all material respects with the Securities Act (requirements of Rule 433 applicable to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Permitted Free Writing Prospectus, did not including timely filing with the Commission where required, legending and will not contain 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 misleadingrecord keeping; provided, however, that and the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the ProspectusStatement.
(fd) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits financial statements included or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed incorporated by reference in the Registration Statement and the Prospectus, together with the Company or the Operating Partnershiprelated schedules and notes, present fairly in all material respects, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries financial position of the Company that are “significant subsidiaries” and its consolidated subsidiaries as of the dates indicated and their results of operations and cash flows for the periods specified; all such financial statements and the supporting schedules, if any, relating to the Company within and its consolidated subsidiaries as of the meaning of Rule 1-02(wdates indicated have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) of Regulation S-X.
(l) The Company has applied on a consistent basis throughout the corporate power periods presented and authority to execute and deliver this Agreement and to perform its obligations hereunder and present fairly in all corporate action material respects in accordance with GAAP the information required to be taken for stated therein; the due and proper authorization, execution and delivery selected financial data included or incorporated by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements reference in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings present fairly in all material respects.
(p) The authorized respects the information shown therein and outstanding capitalization have been compiled on a basis consistent with that of the audited, or unaudited, as applicable, financial statements of the Company is as set forth and its consolidated subsidiaries included or incorporated by reference therein; any unaudited pro forma condensed consolidated financial statements of the Company and the related notes thereto included or incorporated by reference in the Registration Statement and the Prospectus present fairly in all material respects the information shown therein, have been prepared in all material respects in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein give appropriate effect to the transactions and circumstances referred to therein; no financial statements (except historical or pro forma) or supporting schedules are required to be included or incorporated by reference in the Registration Statement or the Prospectus under the Act or the Exchange Act other than those that are so included or incorporated by reference therein; and all disclosures contained in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G under the Exchange Act, and Item 10 of Regulation S-K under the Act, in each case to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus fairly presents the information called for subsequent issuancesin all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(e) This Agreement has been duly authorized, if anyexecuted and delivered by the Company and the Operating Partnership. The form of Confirmation has been duly authorized by the Company. When executed and delivered by the Company, pursuant each Confirmation (including the relevant Supplemental Confirmation to the applicable Master Confirmation) (i) this Agreementwill be, at the time of execution and delivery thereof, duly authorized, executed and delivered by the Company and, (ii) pursuant to reservationsassuming the due authorization, agreementsexecution and delivery thereof by the applicable Forward Purchasers, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement will constitute a valid and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock binding agreement of the Company, enforceable against the Company conforms in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and will conform other similar laws relating to or affecting creditors’ rights generally, by general equitable principles (regardless of whether such enforceability is considered in all material respects to the description thereof contained a proceeding in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(qequity or at law) The Common Stock and the Series D Preferred Stock conform and will conform and, as to legal matters to the descriptions thereof contained in the Registration Statement rights of indemnification and the Prospectus under the caption “Description contribution, by federal or state securities law or principles of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstandingpublic policy.
(s) Except as described in the Registration Statement 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.
(tf) The Placement Primary Shares to be sold by the Company have been duly and validly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreementtherefor as provided herein, will be duly and validly issued, issued and fully paid and non-assessableassessable and will conform in all material respects to all statements related to the shares of Common Stock contained in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus; the Confirmation Shares have been duly and validly authorized and reserved for issuance to each Forward Purchaser, or its affiliate, pursuant to the issuance applicable Confirmation; when such Confirmation Shares are issued and delivered by the Company to such Forward Purchaser against payment of any consideration required to be paid by such Forward Purchaser pursuant to the terms of such Placement Confirmation, such Confirmation Shares will not be duly and validly issued and fully paid and non-assessable and will conform in all material respects to all statements related to the shares of Common Stock contained in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus; no holder of any Primary Shares or any Confirmation Shares will be subject to or in violation personal liability by reason of being such a holder; and any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be certificate used to evidence the Placement any Primary Shares or any Confirmation Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement due and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the articles of amendment and restatement of the Company, as amended (the “Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, the second amended and restated bylaws of the Company (the “Bylaws”) and the requirements of the New York Stock Exchange (the “NYSE”).
(ug) The shares of Common Stock initially issuable upon conversion of There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Series D Preferred Stock Registration Statement or included in the offering contemplated by this Agreement or any Confirmation, except for such rights as have been duly authorized waived.
(h) None of the Company, the Operating Partnership or any of their respective subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement or the Prospectus any loss or interference with its business or any properties described in the Registration Statement or the Prospectus or in any document incorporated by reference therein (the “Properties”) from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, in each case, that could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, business prospects, financial condition or results of operations of the Company, the Operating Partnership and their respective subsidiaries considered as one enterprise (a “Material Adverse Effect”), otherwise than as set forth or contemplated in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus; and, when issued upon conversion since the respective dates as of which information is given in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, there has not been any change in the capital stock of the Series D Preferred Stock Company or any OP Units (as defined below) or long term debt of the Company, the Operating Partnership or any of their subsidiaries or any change that could reasonably be expected to have, individually or in accordance the aggregate, a Material Adverse Effect, otherwise than as set forth or contemplated in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus.
(i) The Operating Partnership and its subsidiaries have good and marketable title in fee simple to, or leasehold or subleasehold interests in, as disclosed in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, as the case may be, the Properties and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus or such as do not materially affect the value of such property and do not interfere with the terms use made and proposed to be made of such property by the Operating Partnership and its subsidiaries; (ii) except as disclosed in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, none of the Articles SupplementaryCompany, will the Operating Partnership or any of their respective subsidiaries owns any real property material to the business of the Operating Partnership and its subsidiaries, considered as one enterprise, other than the Properties; (iii) each of the leases and subleases relating to a Property, if any, material to the business of the Operating Partnership and its subsidiaries, considered as one enterprise, are in full force and effect, with such exceptions as do not materially interfere with the use made or proposed to be validly issued, fully paid and nonassessablemade of such Property by the Operating Partnership or any of its subsidiaries, and (a) no material default or event of default has occurred and is continuing under any lease or sublease with respect to such Property and none of the issuance Company, the Operating Partnership or any of their respective subsidiaries has received any notice of any event which, whether with or without the passage of time or the giving of notice, or both, would constitute a default under such shares lease or sublease and (b) none of Common Stock will not be subject tothe Company, the Operating Partnership or any of their respective subsidiaries has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company, the Operating P
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby"1934 Act Regulations"), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG Peat Marwick LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein. The Company's ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act, the 1933 Act Regulations and guidelines of the American Institute of Certified Public Accountants with respect to pro forma financial information and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i"Properties") or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (iia "Property Partnership") being herein (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the "Duke Group"), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a “Material Adverse Effect”).
whole; (jE) The neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been duly organized, is validly existing no material change in the short-term debt or long-term debt of the Duke Group as a limited whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in good standing under the laws Operating Partnership ("Units") and the issuance of Units in connection with the State acquisition of Delaware real or personal property, there has been no change in the full power and authority to own capital stock or leasein the partnership interests, as the case may be, its property and to operate its property and conduct its business as described in of the Registration Statement Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Prospectus Operating Partnership has been duly formed, and is duly qualified to transact business validly existing and is in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign limited partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a "Material Adverse Effect. All of ").
(xi) If the applicable Underwritten Securities are issued by the Company, and if the Prospectus contains the caption "Capitalization," the authorized, issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company as of the date specified therein is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the Company.
(xii) If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Prospectus contains the caption "Capitalization," the partner's equity of the Operating Partnership is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code Section 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the "Services Partnership") and Duke Construction Limited Partnership (the "Construction Partnership"), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company that are “significant subsidiaries” Duke Group considered as a single enterprise. Duke Services, Inc. is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and DMI Partnership are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. The Services Partnership is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is owned 4.04% by the Services Partnership and 95.96% by DMI Partnership.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rxiv) Except as for transactions described in the Registration Statement Prospectus and the Prospectustransactions in connection with dividend reinvestment plans, and stock option and other employee benefit plans, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company are outstandingCompany, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the Company pursuant to this Agreement and the applicable Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementTerms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company such Underwritten Securities in accordance herewith, each of the purchasers thereof Underwriters will receive good, valid and marketable title to such Placement SharesUnderwritten Securities, free and clear of all Lienssecurity interests, mortgages, pledges, liens, encumbrances, claims and equities. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid such applicable Underwritten Securities conform to all statements and nonassessable, and the issuance of such shares of Common Stock will not be subject todescriptions
Appears in 1 contract
Sources: Underwriting Agreement (Duke Realty Limited Partnership)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities Actrequirements of the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The Registration Statement, at the time the Registration Statement became effective, did not, and did not and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use) and any amendment or supplement theretoClosing Time (as hereinafter defined) will not, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the Prospectus1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby"1934 Act Regulations"), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or Closing Time or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG Peat Marwick LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” financial statements (as defined in Rule 405including the notes thereto) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated included in, or incorporated by reference into, the Registration Statement and the Prospectus present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified; except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; the supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein; and the Company's ratios of earnings to fixed charges (actual and, if any, proforma) included the Prospectus under the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act, the 1933 Act Regulations and guidelines of the American Institute of Certified Public Accountants with respect to pro forma financial information and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending that purpose has been instituted or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplated, and by the Company has not received state securities authority of any notice from jurisdiction. No order preventing or suspending the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge use of the CompanyProspectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i"Properties") or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (iia "Property Partnership") being herein (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the "Duke Group") , whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those in the ordinary course of business, which are material with respect to the Duke Group as a “Material Adverse Effect”).
whole; (jE) The neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been duly organized, is validly existing no material change in the short-term debt or long-term debt of the Duke Group as a limited whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in good standing under the laws Operating Partnership ("Units") and the issuance of Units in connection with the acquisition of real or personal property, there has been no change in the capital stock of the State of Delaware has Company or in the full power and authority to own or leasepartnership interests, as the case may be, its property and to operate its property and conduct its business as described in of the Registration Statement Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Prospectus Operating Partnership has been duly formed, and is duly qualified to transact business validly existing and is in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with partnership or corporate power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with partnership or corporate power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign limited partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a "Material Adverse Effect. All ").
(xi) If the applicable Underwritten Securities are issued by the Company, the capital stock of the Company as of the date specified therein was as set forth in the Prospectus under "Capitalization." All the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws).
(xii) If the applicable Underwritten Securities are issued by the Operating Partnership, the partner's equity of the Operating Partnership is as set forth in the Prospectus under "Capitalization." All the issued and outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code Section 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the "Services Partnership") and Duke Construction Limited Partnership (the "Construction Partnership"), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company that are “significant subsidiaries” Duke Group considered as a single enterprise. Duke Services, Inc. is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and DMI Partnership are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. The Services Partnership is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is owned 4.04% by the Services Partnership and 95.96% by DMI Partnership.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rxiv) Except as for transactions described in the Registration Statement Prospectus and the Prospectustransactions in connection with stock option and dividend reinvestment plans, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company are outstandingCompany, the Operating Partnership or any subsidiary except for the Units which may be issued in exchange for shares of Common Stock.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the Company, pursuant to this Agreement and the applicable Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementTerms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company such Underwritten Securities in accordance herewith, each of the purchasers thereof Underwriters will receive good, valid and marketable title to such Placement SharesUnderwritten Securities, free and clear of all Lienssecurity interests, mortgages, pledges, liens, encumbrances, claims and equities. The certificates, if any, terms of such applicable Underwritten Securities conform to all statements and descriptions related thereto contained in the Prospectus. The form of stock or depositary certificate to be used to evidence the Placement Shares applicable Underwritten Securities will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement due and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements . The issuance of the Articles of Amendment and Restatement, as amended such applicable Underwritten Securities is not subject to any preemptive or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEother similar rights.
(uxvii) The shares of Common Stock initially issuable upon conversion of applicable Underwritten Securities, if such Underwritten Securities are Debt Securities, are in the Series D Preferred Stock form contemplated by the Indenture, have been duly authorized by the Operating Partnership for issuance and sale to the Underwriters pursuant to this Agreement and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tow
Appears in 1 contract
Sources: Underwriting Agreement (Duke Realty Investments Inc)
Representations and Warranties of the Company and the Operating Partnership. The As of the date hereof, the Company and the Operating Partnership, jointly and severally, represent represent, warrant and warrant covenant to the Agent that each Underwriter as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(a) No order preventing or suspending the use The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the Prospectus has been issued by the Commission, and the Prospectus, registration statement as of its date and originally filed or as of the date part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the provisions of the Act.
(b) The Company and the transactions contemplated by this Agreement meet all of the requirements for using Form S-3 under the Act pursuant to the standards for such form in effect currently and immediately prior to October 21, 1992. The Registration Statement, including any amendments thereto filed prior to the Execution Time, was declared effective on March 10, 2008. No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings or examination under Section 8(d) or 8(e) of the Act are pending before or, to the best of the Company’s knowledge, threatened by the Commission. The Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the offering of the Shares. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Registration Statement, in the form in which it was declared effective, and also in such form as it may be when any post-effective amendment thereto shall become effective, and the Preliminary Prospectus and the Prospectus and any supplement or amendment thereto, each when filed with the Commission under Rule 424(b) under the Act, complied or will comply in all material respects with the provisions of the Act and the Exchange Act. The Company has not received from the Commission any notice objecting to the use of the shelf registration statement form. On each Effective Date and at the Execution Time, the Registration Statement did 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 made therein not misleading. On the date of any filing pursuant to Rule 424(b) and on any Settlement the Closing Date and each Option Closing Date, did the Prospectus (together with any supplement thereto) will not, does not and will not contain 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, the Company and the Operating Partnership make no . The representation and warranty with respect contained in this Section 6(b) does not apply to any Agent Information (as defined statements in Section 9(a) hereof).
(A) At the original effectiveness of or omissions from the Registration Statement, (B) at the time of Disclosure Package or the most recent amendment thereto for the purposes of complying Prospectus made in reliance upon and in conformity with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer information relating to the Securities Underwriters furnished to the Company in reliance writing by or on the exemption of Rule 163 under the Securities Act, and (D) as behalf of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”))Underwriters expressly for use therein.
(c) (i) The Registration Statement is an “automatic shelf registration statement” Disclosure Package, and (ii) each electronic road show when taken together as defined in Rule 405) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing a whole with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the CommissionDisclosure Package, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not at the Execution Time, and will not on the Closing Date and each Option Closing Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with information relating to the Underwriters furnished to the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, in writing by or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements on behalf of the Exchange ActUnderwriters expressly for use therein.
(d) Other than (i) At the earliest time after the filing 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 Shares and (ii) as of the ProspectusExecution 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 (including its agents and representativesas defined in Rule 405), other than without taking account of any determination by the Agents in their capacity as suchCommission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(e) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus and the final term sheet prepared and filed pursuant to Section 2(a)(10)(a5(t) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, hereof does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the ProspectusStatement, including any document incorporated Incorporated Document by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, modified. The foregoing sentence does not apply to statements in or delivered prior to delivery of, such omissions from any Issuer Free Writing ProspectusProspectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, did not it being understood and will not contain agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 12 hereof.
(f) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. The Company has given the Representatives notice of any filings made pursuant to the Exchange Act within 48 hours prior to the Execution Time. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(g) The Shares and the Preferred Shares have been duly and validly authorized and will conform in all material respects to the description of the Shares contained in the Disclosure Package and the Prospectus and, when issued and delivered pursuant to this Agreement and, in the case of the Shares, the Deposit Agreement, will be fully paid and non-assessable; providedthe Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement. The form of certificate for the Shares will be in valid and sufficient form in compliance with the New York Stock Exchange requirements.
(h) Each of the Company, howeverthe Partnership and their subsidiaries is a corporation, that limited liability company or limited partnership, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, with full corporate, limited liability company or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify does not have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the Operating Partnership make no representation and warranty with respect to any Agent Informationordinary course of business (“Material Adverse Effect”).
(ei) The Neither the Company was not an “ineligible issuer” (as defined nor any of its subsidiaries does any business in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the ProspectusCuba.
(fj) Other than as set forth on Schedule III hereto, the Company has no subsidiary or subsidiaries, and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The Placement Shares issued shares of capital stock of each of the Company’s subsidiaries have been duly authorized for listing and validly issued, are fully paid and non-assessable and, other than as set forth on the NYSESchedule III hereto, subject to official notice of issuance are owned legally and beneficially by the Company is in material compliance with the rules free and clear of the NYSEany security interests, includingliens, without limitationencumbrances, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share equities or claims.
(the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there k) There are no legal or governmental actions, suits or proceedings pending or, to the knowledge of the Company and Company, threatened, against the Company, the Operating PartnershipPartnership or any of their subsidiaries, threatened or contemplated, and to which the Company has not received or the Operating Partnership or any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge properties of the Company, there are no contracts the Operating Partnership or documents any of a character which their subsidiaries is subject, that (A) are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and or the Prospectus and is duly qualified but are not described as required; (B) could reasonably be expected to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assetsperformance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, businessexcept as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, condition regulations, capital expenditures, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (financial and the Pricing Prospectus contains in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Prospectus under the heading “Federal Income Tax Considerations” and in the Pricing Prospectus and the Prospectus Supplement under the heading “Additional Certain Federal Income Tax Considerations” fairly summarize the matters therein described.
(l) None of the Company, the Partnership or otherwisetheir subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), earnings(ii) any law, propertiesordinance, management, results of operations administrative or prospects of governmental rule or regulation applicable to the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)or any of their subsidiaries, taken as which violation would have a wholeMaterial Adverse Effect, or (iiiii) prevent any decree of any court or governmental agency or body having jurisdiction over the Company or its subsidiaries; or (B) in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which the Company, the Operating Partnership or any of their subsidiaries or any of their respective properties may be bound, and no such default is foreseeable.
(A) As of the date of this Agreement, the Company owns either directly or indirectly through its subsidiaries, 54 properties (the “Properties”). To the best of the Company’s knowledge, none of Company, the Operating Partnership or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would have a Material Adverse Effect; (B) to the best of the Company’s knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially interfere impair the value of any of such Properties and will not result in a forfeiture or reversion of title thereof; (C) none of Company, the Operating Partnership or any of their subsidiaries has received from any governmental authority any written notice of any condemnation of, or zoning change affecting any of, the Properties, and the Company does not know of any such condemnation or zoning change which is threatened and which if consummated would have a material adverse effect on the Company or any of such Properties; (D) the leases under which the Company or any of its subsidiaries leases the Properties as lessor (the “Leases”) are in full force and effect and have been entered into in the ordinary course of business of such entity; (E) the Company and each of its subsidiaries has complied with its respective obligations under the Leases in all material respects and the Company does not know of any default by any other party to the Leases which, alone or together with other such defaults, would have a Material Adverse Effect or material adverse effect on any of the properties subject to a Lease; and (F) all liens, charges, encumbrances, claims or restrictions on or affecting the Properties and assets (including the Properties) of the Company and its subsidiaries that are required to be disclosed in the Prospectus are disclosed therein.
(n) Neither the issuance and sale of the Shares, the execution, delivery or performance of this Agreement or the Deposit Agreement by the Company or the Operating Partnership, nor the consummation by the Company or the Operating Partnership of the transactions contemplated hereby or thereby (including the occurrence application of the proceeds from the sale of the Shares and the designation, issuance and deposit of the Preferred Shares), nor the fulfillment of the terms hereof or thereof: (A) requires any such effectconsent, preventionapproval, interference authorization or result described in the foregoing clauses other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except (i) such as may be required for the registration of the Shares under the Act and compliance with the securities or blue sky laws of various jurisdictions and (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws filing with the Maryland DAT of the State Articles Supplementary), or conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a default under, the articles of Delaware has incorporation, including the full power and authority to own Articles Supplementary, or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business by-laws (or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(kanalogous governing documents) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorizedor any of their subsidiaries; or (B) conflicts or will conflict with or constitutes or will constitute a breach of, are validly issuedor a default under, fully paid and non-assessableany agreement, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive indenture, lease or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by other instrument to which the Company or the Operating Partnership directly or indirectly, free and clear any of all security interests, liens, mortgages, encumbrances, pledges, claims their subsidiaries is a party or other defects of by which the Company or the Operating Partnership or any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries properties of the Company that are “significant subsidiaries” or the Operating Partnership or any of their subsidiaries may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or the Operating Partnership or any of their subsidiaries or any properties of the Company within or the meaning Operating Partnership or any of Rule 1-02(w) their subsidiaries, or will result in the creation or imposition of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorizationany lien, execution and delivery by it of this Agreement and consummation by it charge or encumbrance upon any property or assets of the transactions contemplated hereby have been duly and validly taken.
(m) The Company or the Operating Partnership has the partnership power and authority or any of their subsidiaries pursuant to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by any agreement or instrument to which the Company and accepted for record with or the Maryland State Department Operating Partnership or any of Assessments and Taxation (their subsidiaries is a party or by which the “SDAT”)Company or the Operating Partnership or any of their subsidiaries may be bound, or to which any property or assets of the Company or the Operating Partnership or any of their subsidiaries is subject.
(o) The To the Company’s knowledge, Ernst & Young LLP, who has certified or shall certify the financial statements and schedules included or incorporated by reference in the Registration Statement Statement, the Pricing Prospectus and the Prospectus under (or any amendment or supplement thereto), is and was, as of the captions “Description date of Common this Agreement and Preferred Stock,” “Certain Provisions of Maryland Law during the periods covered by the financial statements on which it reported, an independent registered public accounting firm with respect to the Company as required by the Act and Our Charter the Exchange Act and Bylaws,” “Material Federal Income Tax Considerations,” the applicable published rules and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete regulations thereunder and fair summaries of such agreements, documents or governmental proceedings in all material respectsby the Public Company Accounting Oversight Board.
(p) The authorized financial statements, together with related schedules and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuancesnotes, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, included or incorporated by reference inin the Registration Statement, the Registration Statement Pricing Prospectus and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tot
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that each Underwriter as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:follows.
(a) No order preventing or suspending The Company meets the requirements for use of Form S-3 under the Securities Act. The Prospectus has been issued by or will be so prepared and will be filed pursuant to Rule 424(b) of the Commission, Securities Act on or before the second business day following the date of this Agreement. Copies of the Registration Statement and the Prospectus, as of its date any such amendments or supplements and as of all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement (including one fully executed copy of the Registration Statement and each amendment thereto for the Underwriters) have been delivered or made available through ▇▇▇▇▇ to the Underwriters and their counsel.
(b) The Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and files all reports required by the Exchange Act or the Exchange Act Regulations with the Commission on the ▇▇▇▇▇ system. The documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement thereto, when they became or become effective under the Securities Act or were or are filed with the Commission under the Securities Act or the Exchange Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and on the Exchange Act, as applicable.
(c) The Company has an authorized capitalization as set forth in the Prospectus. The outstanding shares of capital stock, the partnership interests, membership interests or other equity interests, as the case may be, of the Company and each “significant subsidiary” of the Company (as such term is defined in Rule 1-02(w) of Regulation S-X promulgated under the Securities Act), including the Operating Partnership (each, a “Subsidiary”) have been duly and validly authorized and issued and are fully paid and nonassessable. All of the outstanding shares of capital stock of or the partnership interests, membership interests or other equity interests in the Subsidiaries (other than the Operating Partnership), as the case may be, are directly or indirectly owned of record and beneficially by the Company. Except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any Settlement Dateof the Subsidiaries convertible into or exchangeable for any capital stock of or partnership interests, did notmembership interests or other equity interests, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make as the statements thereincase may be, in the light Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the circumstances Company or any Subsidiary to issue any securities or obligations, any such convertible or exchangeable securities or obligations, or any such warrants, rights or options. No waivers, consents or approvals of the holders of any class or series of preferred units of partnership interest of the Operating Partnership need to be obtained in connection with the issuance and sale of the Shares, except for those that have been obtained and delivered in writing to the Representatives before the date hereof.
(d) Each of the Company and the Subsidiaries (all of which Subsidiaries are named in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2004) has been duly incorporated or organized and is validly existing as a corporation, general or limited partnership, limited liability company or other legal entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation or organization with full corporate, partnership, limited liability company or other power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions described in this Agreement.
(e) Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing in each jurisdiction in which they were madethe conduct of its business or the ownership of its real property requires such qualification except for such jurisdictions in which the failure, individually or in the aggregate, to be so qualified could not misleading; providedreasonably be expected to have a material adverse effect on the assets, howeverbusiness, operations, earnings, prospects, properties or condition (financial or otherwise), of the Company and the Subsidiaries, taken as a whole (any such effect where the context so requires, is hereinafter called a “Material Adverse Effect”). Except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock, partnership interests, membership interests or other equity interests, as the case may be, from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary. Except as disclosed in the Prospectus, the Company does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, limited liability company, joint venture or other entity.
(f) The Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the Company and HHC GP Corporation, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity.
(g) Prior to completion of the offering of the Shares, the Company and a wholly-owned subsidiary of the Company will be the holder of OP Units representing an ownership interest in the Operating Partnership in the amounts described in the Prospectus, free and clear of any pledge, lien, encumbrance, security interest or other claim, and a wholly-owned subsidiary of the Company will be the sole general partner of the Operating Partnership.
(h) The Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates except where such failure to be in compliance would not have a Material Adverse Effect.
(i) Neither the Company nor any of the Subsidiaries is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its respective organizational documents, or in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, except for such breaches or defaults which could not have a Material Adverse Effect.
(j) The execution, delivery and performance of this Agreement by the Company and the Operating Partnership make no representation and warranty consummation by the Company and the Operating Partnership of the transactions contemplated by this Agreement do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with respect notice, lapse of time, or both would constitute a breach of, or default under) (i) any provision of the organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Agent Information Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any U.S. federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (as defined ii) for such breaches or defaults that could not have a Material Adverse Effect, or (B) result in Section 9(a) hereof)the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or the Subsidiaries, except for such conflicts, breaches or defaults that could not have a Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership.
(l) No approval, authorization, consent or order of or filing with any U.S. federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency having jurisdiction over the Company (each, a “Governmental Authority”) is required in connection with the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, and the Company’s sale and delivery of the Shares other than (A) At such as have been obtained, or will have been obtained at or prior to the original effectiveness Closing Time or the relevant Date of Delivery, as the Registration Statementcase may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (B) at such approvals as have been obtained in connection with the time approval of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) quotation of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of Shares on the Exchange Act or form of prospectus), NYSE and (C) at any necessary qualification under the time securities or “blue sky” laws of the various jurisdictions in which the Shares are being offered by the Underwriters.
(m) Each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any U.S. federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct its business as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals could not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any Subsidiary is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any U.S. federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any person acting on its behalf Subsidiary, which could have a Material Adverse Effect.
(within n) Each of the meaning, for this clause only, of Registration Statement and any Rule 163(c462(b) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 Registration Statement has become effective under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued by under the Commission, Securities Act and no proceeding proceedings for that purpose have been instituted or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated are pending or, to the knowledge of the Company and the Operating PartnershipCompany, are threatened by the Commission. , and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(o) The Registration StatementStatement complies, and the Prospectus and any further amendments or supplements to the Prospectus or the Registration Statement will, when they have become effective or are filed with the Commission, as of the date hereofcase may be, and any post-effective amendment theretocomply, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the requirements of the Securities ActAct and the Securities Act Regulations. The Registration Statement did not, and did not and any amendment thereto will not not, in each case as of the applicable effective date, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and or any amendment or supplement theretothereto does not and will not, will not as of the applicable filing date and at the Closing Time and on each Date of Delivery (if any), contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information statement contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together Prospectus in reliance upon and in conformity with the Prospectus accompanying, information concerning the Underwriters and furnished in writing by or delivered prior on behalf of the Underwriters through the Representatives to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, Company expressly for use in the light Registration Statement or the Prospectus (that information being limited to that described in the penultimate sentence of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent InformationSection 9(b) hereof).
(ep) The Company was not an “ineligible issuer” (as defined Prospectus delivered to the Underwriters for use in Rule 405) as connection with this offering will be identical to the respective version of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect Prospectus created to be transmitted to the offering of Commission for filing via ▇▇▇▇▇, except to the Placement Shares contemplated extent permitted by the Registration Statement and the Prospectus.Regulation S-T.
(fq) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there There are no actions, suits suits, proceedings, inquiries or proceedings investigations pending or, to the knowledge of the Company and the Operating PartnershipCompany, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) against the Company or any of the Company’s officers, directors, or 5% or greater security holders Subsidiary or any beneficial owner of their respective officers and directors or to which the Company’s unregistered equity securities that were acquired properties, assets or rights of any such entity are subject, at law or in equity, before or by any time on Governmental Authority or after the 180th day immediately preceding the date of the Prospectusarbitral panel which could result in a judgment, except as has been disclosed to the Representatives in writingdecree, award or order having a Material Adverse Effect.
(ir) The Company has been duly incorporatedfinancial statements, is validly existing as a corporation in good standing under including the laws of the State of Marylandnotes thereto, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described included in the Registration Statement and the Prospectus present fairly the consolidated financial position of the entities to which such financial statements relate (the “Covered Entities”) as of the dates indicated and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, consolidated results of operations or prospects and changes in financial position and cash flows of the Company, Covered Entities for the Operating Partnership and the Subsidiaries (periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described applied in the foregoing clauses (i) or (ii) being herein referred to as United States and on a “Material Adverse Effect”).
(j) consistent basis during the periods involved and in accordance with Regulation S-X promulgated by the Commission. The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described financial statement schedules included in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or amounts in the aggregate, have a Material Adverse Effect.
(k) Each Prospectus under the captions “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “SubsidiaryCapitalization” and collectively “Selected Financial Data” fairly present the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power information shown therein and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance compiled on a basis consistent with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed the financial statements included in the Registration Statement and the Prospectus, . No other financial statements or supporting schedules are required to be included or incorporated by reference in the Company or Registration Statement. The unaudited pro forma financial information (including the Operating Partnership, related notes) included in the Prospectus complies as to form in all material respects with the case may be, owns, directly or indirectly, all applicable accounting requirements of the issued Securities Act and outstanding shares of capital stockthe Securities Act Regulations, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries management of the Company believes that the assumptions underlying the pro forma adjustments are “significant subsidiaries” reasonable. Such pro forma adjustments have been properly applied to the historical amounts in the compilation of the information, and such information fairly presents the financial position, results of operations and other information purported to be shown therein at the respective dates and for the respective periods specified. No other pro forma financial information is required to be included in the Registration Statement.
(s) KPMG LLP, KPMG ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, S.C. and Deloitte & Touche LLP, whose reports on the consolidated financial statements of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record Subsidiaries or certain material acquisitions reported on Current Reports on Form 8-K, as applicable, are filed with the Maryland State Department of Assessments Commission and Taxation (the “SDAT”).
(o) The statements incorporated by reference in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toPr
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, the Underwriters as set forth below in this Section 1:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the Agent that knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(b) The Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act”). The documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(c) The Registration Statement, as of each Representation Date effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof and at the Closing Time or any Option Closing Time, each as defined below) on which herein, did not, and does not contain an untrue statement of a certificate is material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to Section 7(qmake the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of the applicable filing date, the date hereof and at the Closing Time and on each Option Closing Time (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 9(b) hereof); the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) As of 8:30 a.m. (Eastern time) on August 4, 2017 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending Notes and at the use of Closing Time and each Option Closing Time, the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did Disclosure Package will not, does not and will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statementissue date or date of first use and at all subsequent times through the Initial Sale Time, (B) each Issuer Free Writing Prospectus did not, and at the time of the most recent amendment thereto for the purposes each sale of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) Notes and at the time the Company or any person acting on its behalf (within the meaningClosing Time and each Option Closing Time, for this clause onlyeach such Issuer Free Writing Prospectus will not, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is contain an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporated, statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to be incorporated, by reference the Company expressly for use therein (that information being limited to that described in the Registration Statement last sentence of the first paragraph of Section 8(a) hereof).
(e) In connection with this offering, the Company has not offered and will not offer the Securities or any other securities convertible into or exchangeable or exercisable for Common Stock in a manner in violation of the Securities Act; and the Company has not distributed and will not distribute any offering material in connection with the offer and sale of the Securities except for the Preliminary Prospectus, the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus or the Registration Statement.
(other than as referred to in clause (if) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with (including the Securities Act (to the extent required therebyFinal Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(eg) The Company was not an “ineligible issuer” (as defined is eligible to use Free Writing Prospectuses in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and Act; any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the rules Commission in accordance with the requirements of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Securities Act; and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and each Free Writing Prospectus that the Company has not received any notice from filed, or is required to file, pursuant to Rule 433(d) under the NYSE regarding Securities Act or that was prepared by or on behalf of or used by the revocation of such listing Company complies or otherwise regarding will comply in all material respects with the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge requirements of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filedSecurities Act.
(h) To Except for the knowledge Issuer Free Writing Prospectuses identified in Schedule II hereto, the information set forth on Exhibit A and any electronic road show relating to the public offering of the Securities contemplated herein, the Company has not prepared, used or referred to, and will not, without the Operating Partnership, there are no affiliations or associations between (i) any member prior consent of the Financial Industry Regulatory AuthorityRepresentatives, Inc. (“FINRA”)prepare, and (ii) the Company use or refer to, any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Free Writing Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporatedPreliminary Prospectus, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriters for use in connection with the public offering of the Securities contemplated herein have been and is in good standing as a foreign corporation in each jurisdiction in which will be identical to the conduct versions of its business or its ownership or leasing of property requires such qualificationdocuments transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects permitted by Regulation S-T of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Securities Act.
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus; and each Issuer Free Writing Prospectus, if any, was preceded or accompanied by the most recent Preliminary Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in satisfying the requirements of Section 10 under the Securities Act, which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectPreliminary Prospectus included an estimated price range.
(k) Each “significant subsidiary” The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus.
(as defined in Rule 1-02(wl) of Regulation S-X) of the Company There are no persons with registration or other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organizedsimilar rights to have any equity or debt securities, is validly existing as a corporationincluding securities which are convertible into or exchangeable for equity securities, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority registered pursuant to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned otherwise registered by the Company or the Operating Partnership directly under the Securities Act, all of which registration or indirectlysimilar rights are fairly summarized in the Registration Statement, free the Prospectus and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly takenDisclosure Package.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company as of June 30, 2017 is as set forth under the heading “Capitalization” in the Registration Statement Statement, the Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, agreements or employee benefit plans or dividend reinvestment the exercise of convertible or stock purchase plans exchangeable securities or options, in each case referred to in the Registration Statement Statement, the Disclosure Package and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized All of the issued and outstanding shares of capital stock of the Company conforms have been duly authorized and will validly issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and the requirements of the New York Stock Exchange, Inc. (the “NYSE”) and were not issued in violation of any preemptive, right of first refusal, or similar right. Attached as Schedule III is a true and complete list of each entity (other than a securitization entity) in which the Company has a direct or indirect majority equity or voting interest that is consolidated with the Company for financial reporting purposes under U.S. generally accepted accounting principles (each, a “Subsidiary” and, together, “Subsidiaries”) and their jurisdictions of organization. All of the issued and outstanding equity interests of each Subsidiary that is a significant subsidiary within the meaning of Regulation S-X (each, a “Significant Subsidiary” and, together, the “Significant Subsidiaries”) have been duly and validly authorized and issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and the requirements of the NYSE, were not issued in violation of any preemptive, right of first refusal, or similar right and, except as set forth in the Disclosure Package and the Prospectus, are owned, directly or indirectly, by the Company free and clear of all liens. There are no outstanding options, warrants or other rights to acquire or purchase, or instruments convertible into or exchangeable for, any equity interests of the Company or any Subsidiary, except as set forth in the Disclosure Package and the Prospectus or held by the Company or any of its Subsidiaries.
(n) Each of the Company and each Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its property and to conduct its business, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, management, financial position, results of operations or prospects of the Company and the Subsidiaries taken as a whole or on the performance by the Company or the Operating Partnership of its obligations under this Agreement (a “Material Adverse Effect”).
(o) The Securities conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement Statement, the Prospectus and the Disclosure Package; the Indenture conforms in all material respects to the descriptions thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and the statements in the Registration Statement, the Disclosure Package and the Prospectus under the caption heading “Description of Common and Preferred StockU.S. Federal Income Tax Considerations” fairly summarize in all material respects the legal matters therein described.”
(rp) Except as described in the Registration Statement The execution and delivery of, 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, units performance by each of partnership interest in the Company and the Operating Partnership (“OP Units”) or other ownership interests in of its obligations under, this Agreement have been duly and validly authorized by the Company and the Operating Partnership, and this Agreement has been duly executed and delivered by the Company and the Operating Partnership are outstandingand, assuming due authorization, execution, delivery, validity, legally binding effect and enforceability hereof by you and thereof by the counterparties thereto, this Agreement constitutes the valid and legally binding agreements of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s and the Operating Partnership’s obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law. The execution and delivery of, and the performance by the Company of its obligations under the Indenture have been duly and validly authorized by the Company, and the Indenture will constitute the valid and legally binding agreements of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(s) Except as described in the Registration Statement 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.
(tq) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares Notes to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued, authenticated and delivered against payment therefor in accordance herewithwith this Agreement and the Indenture, the purchasers thereof will receive good, constitute valid and marketable title legally binding obligations of the Company, except as may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to such Placement Shares, free and clear equitable principles that may limit the right to specific enforcement of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement remedies and will be in proper the form contemplated by, and will comply in all material respects with all applicable legal requirementsentitled to the benefits of, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEIndenture.
(ur) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock Conversion Shares have been duly and validly authorized and reserved for issuance by the Company, and, when issued upon conversion of the Series D Preferred Stock Notes in accordance with the terms of the Articles SupplementaryNotes and the Indenture, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock the Conversion Shares will not be subject toto any preemptive right, right of first refusal or other similar rights to subscribe or purchase securities of the Company or any Subsidiary of the Company.
(s) The Common Stock and Conversion Shares have been approved for listing on the NYSE; the Company has taken all necessary actions to ensure that, upon and at all times since the NYSE shall have approved the Common Stock and Conversion Shares for listing, it is and will be in compliance with all applicable corporate governance requirements set forth in the NYSE’s listing standards that are then in effect; the Company has taken all necessary actions to ensure that the Notes will be approved for listing on the NYSE, subject to official notice of issuance; the Compa
Appears in 1 contract
Sources: Underwriting Agreement (Sutherland Asset Management Corp)
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and QualityTech, LP, a Delaware limited partnership (the “Operating Partnership, ”) jointly and severallyseverally represents, represent warrants and warrant covenants to the Agent that each Underwriter, as of the date hereofof this Agreement, as of each Representation the First Closing Date (as defined belowhereinafter defined) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementOption Closing Date (as hereinafter defined), if any, as follows:
(a) The Registration Statement has become effective under the Securities Act. The Company has complied, to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental information, if any. No stop order preventing or suspending the use effectiveness of the Prospectus has Registration Statement is in effect and no proceedings for such purpose have been issued instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission. At the time the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 (the “Annual Report”) was filed with the Commission, or, if later, at the time the Registration Statement was originally filed with the Commission, the Company met the then-applicable requirements for use of Form S-3 under the Securities Act. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission, or became effective under the Exchange Act, as the case may be, complied and will comply in all material respects with the requirements of the Exchange Act.
(b) Each preliminary prospectus complies, and the Prospectus when filed will comply, as to form in all material respects with the Securities Act and, if filed by electronic transmission pursuant to ▇▇▇▇▇, was identical (except as may be permitted by Regulation S-T under the Securities Act) to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Offered Shares. Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, the Time of Sale Prospectus (including any preliminary prospectus wrapper) did not, and at the First Closing Date (as defined in Section 2) and at each applicable Option Closing Date (as defined in Section 2), will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus (including any Prospectus wrapper), as of its date and as of the date of any amendment or supplement and on any Settlement Datedate, did not, does not and at the First Closing Date and at each applicable Option Closing Date, will not not, contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with representations and warranties set forth in the Commission. No order suspending the effectiveness of three immediately preceding sentences do not apply to statements in or omissions from the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, or any preliminary prospectus, the Prospectus or the Time of Sale Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company in writing by the Representatives, or any Underwriter on its own behalf, expressly for use therein. There are no contracts or other documents required to be described in the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been described or filed as required.
(c) As of its applicable effective the determination date referenced in Rule 164(h) under the Securities Act, the Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of the Offered Shares pursuant to Rules 164, 405 and at each deemed effective date with respect 433 under the Securities Act. Each free writing prospectus that the Company is required to Agents file pursuant to Rule 430B(f)(2433(d) and at each Settlement Dateunder the Securities Act has been, complied and or will be, filed with the Commission in accordance with the requirements of the Securities Act. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of Rule 433 under the Securities Act, including timely filing with the Commission or retention where required and did not legending, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and each such free writing prospectus, as of its issue date and at all subsequent times through the date completion of the Prospectus public offer and any amendment or supplement thereto, will not contain 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 sale of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and Offered Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, the Prospectus or any preliminary prospectus and not superseded or modified. Except for the Prospectusfree writing prospectuses, including any document incorporated by reference therein that if any, identified in Schedule B, and electronic road shows, if any, furnished to you before first use, the Company has not been superseded prepared, used or modified andreferred to, and will not, without your prior written consent, prepare, use or refer to, any free writing prospectus. Each Road Show, when taken considered together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Time of Sale Prospectus, did not and will not not, as of the Applicable Time, contain 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.
(d) The financial statements of the Company included or incorporated by reference in the Registration Statement, howeverthe Time of Sale Prospectus and the Prospectus, that together with the related schedules and notes, present fairly in all material respects the financial position of the Company and its consolidated subsidiaries at the Operating Partnership make dates indicated and the statements of operations and comprehensive income (loss), statements of equity and statements of cash flows of the Company and its consolidated subsidiaries for the periods specified, and such financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods presented; the supporting schedules, if any, relating to the Company and its consolidated subsidiaries present fairly in all material respects in accordance with GAAP the information required to be stated therein; the selected financial data included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited, or unaudited, as applicable, financial statements of the Company and its consolidated subsidiaries included or incorporated by reference therein; except as included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, no representation historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and warranty the Prospectus under the Securities Act or the rules or regulations thereunder; and all disclosures contained in the Registration Statement, the Preliminary Prospectus, Time of Sale Prospectus and the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with respect Regulation G under the Exchange Act, and Item 10 of Regulation S-K under the Securities Act, in each case to any Agent Informationthe extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(e) The Company was not an “ineligible issuer” Prior to the later of (as defined in Rule 405i) as the expiration or termination of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect option granted to the offering several Underwriters in Section 2 and (ii) the completion of the Placement Underwriters’ distribution of the Offered Shares, the Company has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered Shares contemplated other than the Registration Statement, the Time of Sale Prospectus, the Prospectus, any free writing prospectus reviewed and consented to by the Registration Statement Representatives, and the Prospectusfree writing prospectuses, if any, identified on Schedule B hereto.
(f) The Placement Shares have This Agreement has been authorized for listing on the NYSEduly authorized, subject to official notice of issuance executed and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of delivered by the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby Offered Shares have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreementtherefor as provided herein, will be duly and validly issued, issued and fully paid and non-assessableassessable and will conform in all material respects to all statements related to the Shares contained in the Registration Statement, the Time of Sale Prospectus and the issuance Prospectus; no holder of such Placement the Shares will not be subject to or in violation personal liability by reason of being such a holder; any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, certificates to be used to evidence the Placement Shares will will, at the time of closing, be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement due and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the articles of amendment and restatement of the Company (the “Articles of Amendment and Restatement, as ”) and the amended or supplemented through and restated bylaws of the date hereof Company (the “CharterBylaws”), and Bylaws, as amended, of the Company ) and the requirements of the New York Stock Exchange (the “NYSE”).
(uh) The shares of Common Stock initially issuable upon conversion of There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Series D Preferred Stock Registration Statement or included in the offering contemplated by this Agreement, other than the Selling Stockholder with respect to the Offered Shares included in the Registration Statement, except for such rights as have been duly authorized waived.
(i) None of the Operating Partnership, the Company or any of their respective subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus any loss or interference with its business or the 12 Properties identified in Schedule C hereto (the “Properties”) from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, in each case, that could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, business prospects, financial condition or results of operations of the Company, the Operating Partnership and the Operating Partnership’s subsidiaries considered as one enterprise (a “Material Adverse Effect”), otherwise than as set forth or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus; and, when issued upon conversion since the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there has not been any change in the capital stock of the Series D Preferred Stock Company or any OP Units (as defined below) or long term debt of the Operating Partnership or any of its subsidiaries or of the Company or any change that could reasonably be expected to have, individually or in accordance the aggregate, a Material Adverse Effect, otherwise than as set forth or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(i) The Operating Partnership and its subsidiaries have good and marketable title in fee simple to, or leasehold or subleasehold interests in, as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, as the case may be, the Properties and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or such as do not materially affect the value of such property and do not interfere with the terms use made and proposed to be made of such property by the Operating Partnership and its subsidiaries; (ii) except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, none of the Articles SupplementaryOperating Partnership, will the Company or any of their respective subsidiaries owns any real property other than the Properties; (iii) each of the leases and subleases relating to a Property, if any, material to the business of the Operating Partnership and its subsidiaries, considered as one enterprise, are in full force and effect, with such exceptions as do not materially interfere with the use made or proposed to be validly issued, fully paid and nonassessablemade of such Property by the Operating Partnership or any of its subsidiaries, and (a) no material default or event of default has occurred and is continuing under any lease or sublease with respect to such Property and none of the issuance Operating Partnership, the Company or any of their respective subsidiaries has received any notice of any event which, whether with or without the passage of time or the giving of notice, or both, would constitute a default under such lease or sublease and (b) none of the Operating Partnership, the Company or any of their respective subsidiaries has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Operating Partnership, the Company or any of their respective subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Operating Partnership, the Company or any of their respective subsidiaries to the continued possession of the leased or subleased premises under any such lease or sublease; (iv) all liens, charges, encumbrances, claims or restrictions on any of the Properties or assets of any of the Operating Partnership, the Company or any of their respective subsidiaries that are required to be disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus are disclosed therein; (v) no tenant under any of the leases at the Properties has a right of first refusal or an option to purchase the premises demised under such lease; (vi) each of the Properties complies in all material respects 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 Registration Statement, the Time of Sale Prospectus and the Prospectus; (vii) the mortgages that encumber certain of the Properties are not convertible into equity securities of the entity owning a particular property; and (viii) none of the Operating Partnership, the Company or any of their respective subsidiaries or, to the knowledge of any of the Operating Partnership, the Company or any of their respective subsidiaries, any lessee of any of the Properties is in default under any of the leases governing the Properties that would have a material adverse effect on the Operating Partnership, the Company or any of their respective subsidiaries considered as one enterprise and none of the Operating Partnership, the Company or any of their respective subsidiaries knows of any event which, whether with or without the passage of time or the giving of notice, or both, would constitute a default under any of such shares leases.
(k) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Common Stock will not be subject tothe State of Maryland, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and enter into and perform its obligations under this Agreement, and has been duly qualified as a foreign corporation for the transaction of business and is
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to and agree with each of the Agent that as of Underwriters on the date hereof, as of each Representation on the Closing Date (as defined belowin Section 4 hereof) and on which a certificate is required to be delivered pursuant to each Option Closing Date (as defined in Section 7(q2 hereof), and as of the time of each sale of any Placement Shares pursuant to this Agreementif any, that:
(a) No order preventing or suspending the use of the Statutory Prospectus has been issued by the Commission, and the Statutory Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and the Statutory Prospectus, as of its date and as of the date hereof, did not contain 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 that the Company and the Operating Partnership make no representation and warranty with respect to any amendment statements or supplement omissions made in reliance upon and on in conformity with information relating to any Settlement DateUnderwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Statutory Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(b) The Pricing Disclosure Package at the Applicable Time did not, does not and as of the Closing Date and as of each Option Closing Date, as the case may be, will not contain 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, provided that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as defined such in Section 9(a8(b) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(ci) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have has been and remain eligible for registration declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The ; the Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datedate, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (ii) as of the date of the Prospectus and any amendment or supplement theretothereto and as of the Closing Date and as of each Option Closing Date, as the case may be, the Prospectus will not contain 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, provided that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationstatements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Section 8(b) hereof. The documents incorporated, or to be incorporated, by reference in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus, at the time filed with the Commission, Commission complied or will comply, in all respects to the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the Securities Act, as applicable, and the rules and regulations thereunder.
(d) Other than the Registration Statement Statement, the Statutory Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Agents Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Schedule II annexed hereto, each electronic road show and any other written communications approved in writing in advance by the AgentRepresentatives. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and ; did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Statutory Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not not, and as of the Closing Date and as of each Option Closing Date, as the case may be, will not not, contain 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, provided that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationstatements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus or Statutory Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Section 8(b) hereof.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405405 under the Securities Act) as of the eligibility determination date for purposes of Rules Rule 164 and Rule 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement Statement, Pricing Disclosure Package and the Prospectus.
(f) The Placement Company has applied to have the Shares have been authorized for listing listed on the New York Stock Exchange (the “NYSE, subject to official notice of issuance and the ”). The Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”)) other than Summit Capital Partners, LLC, and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the ProspectusRegistration Statement was initially filed with the Commission, except as has been disclosed to the Representatives in writing.
(ih) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(ji) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware Delaware, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(kj) Each direct and indirect “significant subsidiary” (as defined in Rule 1-02(w02(x) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or and indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectlySubsidiary, in each case free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 III hereto specifically identifies all subsidiaries of the Company Subsidiaries that are “significant subsidiariesSignificant Subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(lk) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(ml) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(om) The statements in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and of Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” “Additional Federal Income Tax Considerations” and “Plan of DistributionUnderwriting,” insofar as such statements summarize legal matters, agreements, documents or legal or governmental proceedings discussed therein, are accurate, complete and fair summaries of such legal matters, agreements, documents or legal or governmental proceedings in all material respects.
(pn) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to Pricing Disclosure Package and will be as set forth in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects as to legal matters to the description thereof contained in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(ro) Except as described in the Registration Statement Statement, the Pricing 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(sp) Except as described in the Registration Statement Statement, the Pricing 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.
(tq) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof Underwriters will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will will, on the Closing Date and each Option Closing Date, be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(ur) The shares of Common Stock initially issuable upon conversion Immediately prior to the offering of the Series D Preferred Stock have been duly authorized andShares, when issued upon conversion the Company is the holder, directly or indirectly, of the Series D Preferred Stock OP Units in accordance with the terms percentage described in the Registration Statement, Pricing Disclosure Package and the Prospectus. Summit Hotel GP, LLC, a wholly owned subsidiary of the Articles SupplementaryCompany, will is the sole general partner of the Operating Partnership. The OP Units to be validly issued, fully paid and nonassessable, and issued by the issuance of such shares of Common Stock will not be subject toOperating Partnership to the Company upon contribution by the Compa
Appears in 1 contract
Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as Each of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation represents and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).warrants to, and agrees with, each of the Underwriters that:
(Ai) At The Company has filed with the original effectiveness Securities and Exchange Commission (the "Commission") a registration statement on Form S-11 (No. 333-71932), and amendments thereto, and related preliminary prospectuses for the registration under the Securities Act of 1933, as amended (the "Securities Act"), of shares of common stock, which registration statement, as so amended, has been declared effective by the Commission and copies of which have heretofore been delivered to the Underwriters. The registration statement, as amended at the time it became effective, including the exhibits and information (if any) deemed to be part of the Registration Statement, (B) registration statement at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed effectiveness pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 430A under the Securities Act, and (D) is hereinafter referred to as of the date hereof, "Registration Statement." If the Company was and has filed or is required pursuant to the terms hereof to file a “well-known seasoned issuer” (as defined in registration statement pursuant to Rule 405 462(b) under the Securities Act registering additional shares of Common Stock (“a "Rule 405”462(b) Registration Statement")).
(c, then, unless otherwise specified, any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462(b) The Registration Statement is an “automatic shelf registration statement” (as defined in Statement. Other than a Rule 405462(b) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement Statement, which became effective upon filing filing, no other document with respect to the Registration Statement has heretofore been filed with the Commission. No stop order suspending the effectiveness of either the Registration Statement or the Rule 462(b) Registration Statement, if any, has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany's knowledge, threatened by the Commission. The Company, if required by the rules and regulations of the Commission (the "Rules and Regulations"), proposes to file the Prospectus with the Commission pursuant to Rule 424(b) of the Rules and Regulations. The Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, or, if the Prospectus is not to be filed with the Commission pursuant to Rule 424(b), the Prospectus in the form included as part of the Registration Statement at the time the Registration Statement became effective, is hereinafter referred to as the "Prospectus," except that if any revised prospectus or prospectus supplement shall be provided to the Underwriters by the Company for use in connection with the offering and sale of the Shares (the "Offering") which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term "Prospectus" shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Underwriters for such use. Any preliminary prospectus or prospectus subject to completion included in the Registration Statement or filed with the Commission pursuant to Rule 424 under the Securities Act is hereafter called a "Preliminary Prospectus." All references in this Agreement to the Registration Statement, as the Rule 462(b) Registration Statement, a Preliminary Prospectus and the Prospectus, or any amendments or supplements to any of the date hereofforegoing, shall be deemed to include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System ("EDGAR").
(ii) At the time of the effectiveness of the Reg▇▇▇▇▇tion Statement or the effectiveness of any post-effective amendment theretoto the Registration Statement, as of its applicable effective date and at each deemed effective date when the Prospectus is first filed with respect to Agents the Commission pursuant to Rule 430B(f)(2424(b) or Rule 434 of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at each Settlement the Closing Date and the Additional Closing Date, if any (as hereinafter respectively defined), the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied and or will comply in all material respects with the Securities Act, applicable provisions of the Act and the Rules and Regulations and did not and will not contain any an untrue statement of a material fact or and did not and will not omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as (i) in the case of the date Registration Statement, not misleading and (ii) in the case of the Prospectus and or any amendment or supplement thereto, will not contain any untrue statement of a material fact or omit to state a material fact necessary related Preliminary Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that . When any related preliminary prospectus was first filed with the Company Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Rules and the Operating Partnership make no representation Regulations) and warranty with respect to when any Agent Information. The documents incorporated, amendment thereof or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time supplement thereto was first filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing such Preliminary Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus amendments thereof and supplements thereto complied and will comply in all material respects with the Securities applicable provisions of the Act (to and the extent required thereby), Rules and Regulations and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or and did not omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided. No representation and warranty is made in this subsection (a)(ii), however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent information contained in or omitted from the Registration Statement or the Prospectus or any related Preliminary Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through you specifically for use therein ("Underwriters' Information"). The parties acknowledge and agree that the Underwriters' Information consists solely of the material included in paragraphs ___, ___ and ___ under the caption "Underwriting" in the Prospectus.
(eiii) The Company was not an “ineligible issuer” Ernst & Young LLP and Deloitte & Touche, the accountants who have certified the financial statements and supporting schedules included in the Registration Statement, are each independent public accountants as required by the Act and the Rules and Regulations.
(as defined in Rule 405iv) Subsequent to the respective dates as of which information is given in the eligibility determination Registration Statement and the Prospectus, except as set forth in the Registration Statement and the Prospectus, there has been no material adverse change or any development involving a prospective material adverse change in the business, prospects, properties, operations, condition (financial or other) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, and since the date for purposes of Rules 164 the latest balance sheet presented in the Registration Statement and 433 under the Securities Act with respect Prospectus, neither the Company nor any of its subsidiaries has incurred or undertaken any liabilities or obligations, direct or contingent, which are material to the offering of the Placement Shares contemplated by Company and its subsidiaries taken as a whole, except for liabilities or obligations which are reflected in the Registration Statement and the Prospectus.
(fv) The Placement Shares This Agreement and the transactions contemplated herein have been duly and validly authorized for listing on by the NYSE, subject to official notice of issuance Company and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Operating Partnership and the Series D Preferred Stock on the NYSE, this Agreement has been duly and there are no actions, suits or proceedings pending or, to the knowledge validly executed and delivered by each of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(gvi) To The management agreement (the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”"Management Agreement"), and (ii) the Company or any dated as of the Company’s officersJune 10, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease1988, as the case may beamended on November 23, its property 1999 and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationJanuary [ ], except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets2002, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of between the Company, the Operating Partnership and the Subsidiaries Manager has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and constitutes a valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors' rights or by general equitable principles.
(as hereinafter defined)vii) The execution, taken as a wholedelivery, or (ii) prevent or materially interfere with and performance of this Agreement and the consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement, instrument, franchise, license or permit to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective properties or assets may be bound and which is material to the business of the Company and its subsidiaries taken as a whole or (ii) being herein referred violate or conflict with any provision of the charter, by-laws, limited liability company agreement or partnership agreement, as the case may be, of the Company or any of the subsidiaries listed on Schedule IV hereto (the "Subsidiaries") or any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or assets. The Company has no other significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X) that are not set forth on Schedule IV. No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or assets is required for the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, by the Registration Statement and by the Prospectus, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by the Company hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as a “Material Adverse Effect”)may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(jviii) The Operating Partnership Company has the authorized capitalization set forth in the Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and were not issued in violation of or subject to any preemptive or similar rights that entitle or will entitle any person to acquire any Shares from the Company upon issuance thereof by the Company, except for such rights as may have been fully satisfied or waived prior to the effectiveness of the Registration Statement; the Shares to be delivered on the Closing Date and the Additional Closing Date, if any, (as hereinafter respectively defined) have been duly and validly authorized and, when delivered by the Company in accordance with this Agreement, will be duly and validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights that entitle or will entitle any person to acquire any Shares from the Company upon issuance thereof by the Company; and all of the issued shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and (except as set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; the Common Stock, the Firm Shares and the Additional Shares conform to the descriptions thereof contained in the Registration Statement and the Prospectus.
(ix) The Company and each of its subsidiaries has been duly organized, organized and is validly existing as a corporation, partnership, limited partnership liability company or real estate investment trust in good standing under the laws of its respective jurisdiction of organization. Each of the State of Delaware has the full power Company and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and subsidiaries is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact do business and is in good standing as a foreign corporation, limited partnership or partnership, limited liability company, as the case may be, company or real estate investment trust in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business or its ownership or leasing of property requires makes such qualificationqualification necessary, except to the extent that the failure for those failures to be so qualified or be in good standing would which will not in the aggregate have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary Each of the Company and its subsidiaries has all requisite power and authority, and all necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits of and from all public, regulatory or the Operating Partnership have been duly authorized, are validly issued, fully paid governmental agencies and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind bodies (collectively, “Liens”"Governmental Licenses"). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power , to own, lease and authority to execute operate its properties and deliver this Agreement conduct its business as it is now being conducted and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no options, warrants or other rights except where the failure to purchase, agreements or other obligations to issue, or rights to convert possess any obligations into or exchange any securities for, units of partnership interest such Governmental Licenses would not in the Operating Partnership (“OP Units”) aggregate have a Material Adverse Effect; and no such consent, approval, authorization, order, registration, qualification, license or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described permit contains a materially burdensome restriction not adequately disclosed in the Registration Statement 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.
(tx) Except as described in the Prospectus, there is no legal or governmental proceeding to which the Company or any of its subsidiaries is a party, or of which any property of the Company or any of its subsidiaries is the subject which, singularly or in the aggregate, if determined adversely to the Company or any of its subsidiaries, are reasonably likely to have a Material Adverse Effect, and to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened or contemplated by others.
(xi) Neither the Company nor any of its affiliates have taken nor will take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(xii) The Placement Shares to be sold by financial statements, including the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessablenotes thereto, and the issuance of such Placement Shares will not be subject to or supporting schedules included in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of Prospectus present fairly the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, financial position of the Company and the requirements its consolidated subsidiaries as of the NYSEdates indicated and condition and results of operations for the periods specified; except as otherwise stated in the Registration Statement, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved.
(uxiii) [The shares of Common Stock initially issuable upon conversion assumptions used in preparing the pro forma financial statements included in each of the Series D Preferred Stock have been duly authorized andRegistration Statement and the Prospectus provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessablerelated pro forma adjustments give appropriate effect to those assumptions, and the issuance pro forma columns therein reflect the proper application of such shares those adjustments to the corresponding historical financial statement amounts.]
(xiv) No holder of Common Stock securities of the Company has any rights to the registration of securities of the Company because of the filing of the Registration Statement or otherwise in connection with the sale of the Shares contemplated hereby.
(xv) The Company is not, and upon consummation of the transactions contemplated hereby will not be be, subject toto registration as an "investment company" under the Investment Company Act of 1940.
(xvi) (A) The Company and its subsidiaries have good and marketable fee simple title or leasehold title, as the case may be,
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and First Washington Realty Limited Partnership, a Maryland limited partnership (the "Operating Partnership"), jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)to, and as of agree with, the time of each sale of any Placement Shares pursuant to this AgreementRepresentatives that:
(a) No order preventing or suspending A registration statement on Form S-11 (File No. 333-15423) with respect to the use Shares has been prepared by the Company in conformity with the requirements of the Prospectus has been issued by Securities Act of 1933, as amended (the Commission"Act"), and the ProspectusRules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission. Copies of such registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and Regulations) contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been delivered by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) of its date the Act, herein referred to as the "Registration Statement," which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below, has become effective under the Act and no post-effective amendment to the Registration Statement has been filed as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make this Agreement. "Prospectus" means (a) the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing prospectus first filed with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents Commission pursuant to Rule 430B(f)(2424(b) and at each Settlement Date, complied and will comply in all material respects with or (b) the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference last preliminary prospectus included in the Registration Statement and the Prospectus, at filed prior to the time it becomes effective or filed pursuant to Rule 424(a) under the Act that is delivered by the Company to the Underwriters for delivery to purchasers of the Shares, together with the term sheet or abbreviated term sheet filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus Commission pursuant to Section 2(a)(10)(aRule 424(b)(7) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the AgentAct. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained preliminary prospectus included in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company time it became effective is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)"Preliminary Prospectus.
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority " Any reference herein to own any Preliminary Prospectus or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus shall be deemed to refer to and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except include any supplements relating to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the Shares being issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record sold pursuant thereto filed with the Maryland State Department Commission after the date of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and filing of the Prospectus under Rules 424(b) and 430A and prior to the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization termination of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock offering of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEUnderwriters.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (First Washington Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending The Company and the Operating Partnership meet the requirements for use of Form S-3, and the Prospectus Registration Statement has been issued declared effective by the Commission.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus and, if applicable, any Term Sheet to the Prospectus, as of its date and as of the date of any amendment or supplement hereof and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commissioneffective, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and when any post-effective amendment theretoto the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, will comply when so filed in all material respects with all applicable provisions of the Act; will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty Prospectus delivered to the Underwriter for use in connection with respect the offering of Shares will, at the time of such delivery, be identical to any Agent Information. the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to Underwriter specifically for inclusion in the Registration Statement or Prospectus or any Agent Informationamendment or supplement thereto.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualificationMaryland. Each of the Operating Partnership, except to First Industrial Financing Partnership, L.P. (the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise"Financing Partnership"), earningsFirst Industrial Securities, propertiesL.P. ("Securities, managementL.P."), results of operations or prospects of First Industrial Mortgage Partnership, L.P. (the Company"Mortgage Partnership"), First Industrial Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P. ("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the Operating Partnership, the Operating Partnership Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein FIP are referred to collectively herein as a “Material Adverse Effect”).
(jthe "Partnership Subsidiaries") The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"), First Industrial Management Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively herein as the State "Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under and by virtue of Delaware has the laws of its jurisdiction of organization. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIDSG is a wholly-owned subsidiary of the Company and is the sole general partner of DSG. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Company and each of the Subsidiaries has, and at the Closing Date will have, full corporate or partnership power and authority to own or leaseauthority, as the case may be, its property to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its property and conduct its business in which it engages or proposes to engage as described in the Registration Statement and or the Prospectus and is the transactions contemplated hereby and thereby. The Company and each of the Corporate Subsidiaries is, and at the Closing Date will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, except where failure to obtain such qualifications or registration will not have a material adverse effect on (i) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Company and its Subsidiaries, taken as whole or on the 453 in service properties owned, directly or indirectly, by the Company as of June 30, 1997 (the "Properties"), (ii) the issuance, validity or enforceability of the shares or (iii) the consummation of any of the transactions contemplated by this Agreement (a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are attached on Schedule I hereto. Each of the Partnership Subsidiaries is, and at the Closing Date will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualifications or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would registration will not have a Material Adverse Effect, which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. All Complete and correct copies of the issued shares articles of capital stock, units of limited partnership interest incorporation and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and nonby-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements charter documents, partnership agreements and other organizational documents of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock Subsidiaries and all amendments thereto as have been duly authorized and, when issued upon conversion of requested by the Series D Preferred Stock in accordance with Underwriter or its counsel have been delivered to the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toUnderwriter or its counsel.
Appears in 1 contract
Sources: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to to, and agree with, the Agent Sales Agents that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information Applicable Time (as defined in Section 9(a) hereof21(a).):
(Aa) At The Company satisfies the original effectiveness requirements for use 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 Form S-3 under the Securities Act (“Rule 405”)).
(c) The and has prepared and filed with the Commission the Registration Statement is an “automatic shelf for registration statement” under the Securities Act of the offering and sale of the Securities and the Rights (as defined in Rule 405) and below). Such Registration Statement, including any amendments thereto filed prior to the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became Applicable Time, has become effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commissionfiling. The Registration Statement, as at the Applicable Time, meets, and the offer and sale of the date hereofSecurities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act. At the Applicable Time, the Registration Statement did, and any post-effective amendment theretowhen the Prospectus is first filed in accordance with Rule 424(b), as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datethe Prospectus will, complied and will comply in all material respects with the applicable requirements of the Securities ActAct and the Exchange Act and the respective rules thereunder, and at the Applicable Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of on the date of any filing pursuant to Rule 424(b), the Prospectus and any amendment or supplement thereto, will not contain 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 in reliance upon and in conformity with information furnished in writing to the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, Company by or to be incorporated, by reference on behalf of the Sales Agents 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 the Sales Agents consists of the information described as such in Section 9(a) hereof. The Company has complied to the Commission’s satisfaction with any 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, to the knowledge of the Company, no proceeding for that purpose has been instituted or threatened by the Commission or by the state securities authority or any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and, to the knowledge of the Company, no proceeding for that purpose has been instituted by the Commission or by the state securities authority of any jurisdiction. The initial Effective Date of the Registration Statement was not earlier than the date three years before the Applicable Time.
(i) At the time of filing the Registration Statement, (ii) at each Applicable Time and (iii) at each Settlement Date, the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r). The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Prospectus, at offer and sale of the time filed with Securities have been and remain eligible for registration by the Commission, complied or will comply, in all respects Company on such automatic shelf registration statement. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the requirements use of the Exchange automatic shelf registration statement form.
(i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) in the offering of the Securities and (ii) as of each Applicable 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 under the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary under the circumstances that the Company be considered an Ineligible Issuer.
(d) Other than the Registration Statement and the Each Free Writing Prospectus, as of its issue date and at all subsequent times through the Company (including its agents completion of the specific offering and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) sale of the Securities Act contemplated hereby, or Rule 134 under until any earlier date that the Securities Act or (iiCompany notifies the Sales Agents in accordance with Section 7(e) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)hereof, and did not, does not and or will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the ProspectusStatement, including any document included or incorporated by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, modified. The foregoing sentence does not apply to statements in or delivered prior to delivery of, such Issuer omissions from any Free Writing Prospectus, did not Prospectus based upon and will not contain any untrue statement of a material fact or omit in conformity with written information furnished to state a material fact necessary in order to make the statements Company by the Sales Agents specifically for use therein, in it being understood and agreed that the light only such information furnished by or on behalf of the circumstances under which they were made, not misleading; provided, however, that Sales Agents consists of the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationinformation described as such in Section 9(a) hereof.
(e) The All documents filed by the Company was not an “ineligible issuer” (as defined in Rule 405) as pursuant to Sections 12, 13, 14 or 15 of the eligibility determination date for purposes Exchange Act and incorporated by reference into the Registration Statement or 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 Rules 164 and 433 under the Securities Act with respect or the Exchange Act, as applicable. Any further documents so filed, when such documents are filed or become effective by the Commission, as the case may be, will conform in all material respects to the offering requirements of the Placement Shares contemplated by Securities Act or the Registration Statement and the ProspectusExchange Act, as applicable.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has the Maryland with full corporate power and authority to own and or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus Prospectus, and to enter into and perform its obligations under this Agreement and, as general partner of the Operating Partnership, to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement and the Third Amended and Restated Limited Partnership Agreement of the Operating Partnership, as amended (the “Operating Partnership Agreement”), and is duly qualified to transact do business as a foreign corporation and is in good standing as a foreign corporation in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), prospects, earnings, properties, management, results of operations business or prospects properties of the Company, the Operating Partnership Company and the Subsidiaries (as hereinafter defined)its subsidiaries, taken as a whole, whether or (ii) prevent or materially interfere with consummation of the not arising from transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses ordinary course of business (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(jg) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the Michigan with full power and authority to own or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement, and is duly qualified to transact do business and is in good standing as a foreign limited partnership in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, not have a Material Adverse Effect.
(kh) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) subsidiary of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, formed and is validly existing as a corporation, limited partnership liability company or limited liability company partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the in which it is chartered or organized with full power and authority (corporate and other) to own or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus Prospectus, and is duly qualified to transact do business and is in good standing as a foreign corporation, limited partnership liability company or limited liability companypartnership, as the case may be, and is in good standing under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not have a Material Adverse Effect. .
(i) All of the issued outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other ownership interests of each Subsidiary subsidiary of the Company or the Operating Partnership have been duly authorized, and validly authorized and issued and are validly issued, fully paid and non-assessable, have been issued and, except as otherwise set forth in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units stock or other ownership interests of limited partnership interest and units of membership interest of each Subsidiary the Company’s subsidiaries are owned by the Company or the Operating Partnership either directly or indirectly, through wholly owned subsidiaries free and clear of all any perfected security interest or any other security interests, liensclaims, mortgages, encumbrances, pledges, claims liens, encumbrances or other defects restrictions of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is Except as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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 for, units of partnership interest in the Operating Partnership (“OP Units”) or interests for capital stock or other ownership interests in of any subsidiary of the Operating Partnership are outstandingCompany.
(sj) Except The Company’s authorized equity capitalization is as described set forth in the Registration Statement and the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and non-assessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Sales Agents pursuant to the terms of this Agreement, will be fully paid and non-assessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE; 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; pursuant to a Rights Agreement (the “Rights Agreement”), dated as of June 2, 2008, as amended, between the Company and Computershare Trust Company, N.A., as rights agent, the Common Stock is issued and trades with preferred share purchase rights (the “Rights”); the Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability; the Rights have been duly authorized by the Company and, when issued upon issuance of the Securities, will be validly issued, and the shares of Junior Participating Preferred Stock (as defined in the Company’s Organizational Documents) have been duly authorized by the Company and validly reserved for issuance upon the exercise in accordance with the terms of the Rights Agreement and will be validly issued, fully paid and non-assessable; except as set forth in 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; and all offers and sales by the Company of the 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.
(tk) All of the issued and outstanding units of limited partnership (the “Units”) of the Operating Partnership have been duly and validly authorized and issued by the Operating Partnership and conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. None of the Units was 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 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. The Placement Shares to be sold Units owned by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold are owned directly by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement SharesCompany, free and clear of all Liens. The certificates, if any, issuance of the common Units to be used issued by the Operating Partnership in connection with the contribution of the net proceeds from the sale of the Securities to evidence the Placement Shares Operating Partnership has been duly authorized, and, when issued and delivered by the Operating Partnership, the Units will be validly issued and fully paid.
(l) There is no franchise, contract or other document of a character required to be described in substantially the form Registration Statement or the Prospectus, or to be filed as an exhibit tothereto, which is not described or filed as required; and the statements included or incorporated by reference in, in the Registration Statement Prospectus under the headings “Plan of Distribution” “Summary,” “Risk Factors,” “Use of Proceeds,” “Description of Common Stock,” “Description of Preferred Stock,” “The Operating Partnership Agreement,” “Certain Provisions of Maryland Law and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), Our Charter and Bylaws” and “Material U.S. Federal Income Tax Considerations” insofar as such statements summarize legal matters, as amendedagreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(m) This Agreement has been duly authorized, executed and delivered by each of the Company and the requirements of the NYSEOperating Partnership.
(un) The shares of Common Stock initially issuable upon conversion Neither the Company nor the Operating Partnership is, after giving effect to the offering and sale of the Series D Preferred Stock Securities and the application of the proceeds thereof as described in the Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(o) 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 duly authorized and, when issued upon conversion obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Series D Preferred Stock Securities by the Sales Agents in accordance with the manner contemplated herein and in the Prospectus.
(p) 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 by the Company 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, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Articles SupplementaryCompany or any of its subsidiaries is a party or bound or to which its or their property is subject, will be validly issued, fully paid except as would not have a Material Adverse Effect and nonassessable, and would not have a material adverse effect on the issuance performance of such shares this Agreement or the consummation of Common Stock will not be subject toa
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to to, and agree with, each of the Agent that Underwriters as of the date hereof, hereof and as of each Representation the Closing Date (as defined in Section 2 below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending The Company has filed with the use Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-38071), and amendments thereto, and related preliminary prospectuses for the registration under the Securities Act of 1933, as amended (the "Securities Act"), of the Prospectus Shares which registration statement, as so amended, has been issued declared effective by the Commission, Commission and copies of which have heretofore been delivered to the ProspectusUnderwriters. The registration statement, as of its date amended at the time it became effective, including the exhibits and as information (if any) deemed to be part of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue registration 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed effectiveness pursuant to Section 13 Rule 430A or 15(d) of the Exchange 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(c434(d) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 rules and regulations promulgated under the Securities Act, and (D) is hereinafter referred to as of the date hereof, "Registration Statement." If the Company was and has filed or is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or required pursuant to Section 8A of the Securities Act against the Company or related terms hereof to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents file a registration statement pursuant to Rule 430B(f)(2462(b) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or the Rules and Regulations increasing the size of the Offering by registering additional shares of Common Stock (iia "Rule 462(b) each electronic road show and Registration Statement"), then, unless otherwise specified, any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, became effective upon filing, no other written communications approved in writing in advance by document with respect to the AgentRegistration Statement has heretofore been filed with the Commission. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with All of the Shares have been registered under the Securities Act (pursuant to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectusor, including if any document incorporated by reference therein that has not been superseded or modified andRule 462(b) Registration Statement is filed, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 be duly registered under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation filing of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”Rule 462(b), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (Crescent Real Estate Equities Co)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to to, and agree with, the Agent Sales Agents that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information Applicable Time (as defined in Section 9(a) hereof21(a).):
(Aa) At The Company satisfies the original effectiveness requirements for use 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 Form S-3 under the Securities Act (“Rule 405”)).
(c) The and has prepared and filed with the Commission the Registration Statement is an “automatic shelf for registration statement” under the Securities Act of the offering and sale of the Securities and the Rights (as defined in Rule 405) and below). Such Registration Statement, including any amendments thereto filed prior to the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became Applicable Time, has become effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commissionfiling. The Registration Statement, as at the Applicable Time, meets, and the offer and sale of the date hereofSecurities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act. At the Applicable Time, the Registration Statement did, and any post-effective amendment theretowhen the Prospectus is first filed in accordance with Rule 424(b), as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datethe Prospectus will, complied and will comply in all material respects with the applicable requirements of the Securities ActAct and the Exchange Act and the respective rules thereunder, and at the Applicable Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of on the date of any filing pursuant to Rule 424(b), the Prospectus and any amendment or supplement thereto, will not contain 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 in reliance upon and in conformity with information furnished in writing to the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, Company by or to be incorporated, by reference on behalf of the Sales Agents 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 the Sales Agents consists of the information described as such in Section 9(a) hereof. The Company has complied to the Commission’s satisfaction with any 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, to the knowledge of the Company, no proceeding for that purpose has been instituted or threatened by the Commission or by the state securities authority or any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and, to the knowledge of the Company, no proceeding for that purpose has been instituted by the Commission or by the state securities authority of any jurisdiction. The initial Effective Date of the Registration Statement was not earlier than the date three years before the Applicable Time.
(i) At the time of filing the Registration Statement, (ii) at each Applicable Time and (iii) at each Settlement Date, the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r). The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Prospectus, at offer and sale of the time filed with Securities have been and remain eligible for registration by the Commission, complied or will comply, in all respects Company on such automatic shelf registration statement. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the requirements use of the Exchange automatic shelf registration statement form.
(i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) in the offering of the Securities and (ii) as of each Applicable 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 under the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary under the circumstances that the Company be considered an Ineligible Issuer.
(d) Other than the Registration Statement and the Each Free Writing Prospectus, as of its issue date and at all subsequent times through the Company (including its agents completion of the specific offering and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) sale of the Securities Act contemplated hereby, or Rule 134 under until any earlier date that the Securities Act or (iiCompany notifies the Sales Agents in accordance with Section 7(e) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)hereof, and did not, does not and or will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the ProspectusStatement, including any document included or incorporated by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, modified. The foregoing sentence does not apply to statements in or delivered prior to delivery of, such Issuer omissions from any Free Writing Prospectus, did not Prospectus based upon and will not contain any untrue statement of a material fact or omit in conformity with written information furnished to state a material fact necessary in order to make the statements Company by the Sales Agents specifically for use therein, in it being understood and agreed that the light only such information furnished by or on behalf of the circumstances under which they were made, not misleading; provided, however, that Sales Agents consists of the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationinformation described as such in Section 9(a) hereof.
(e) The All documents filed by the Company was not an “ineligible issuer” (as defined in Rule 405) as pursuant to Sections 12, 13, 14 or 15 of the eligibility determination date for purposes Exchange Act and incorporated by reference into the Registration Statement or 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 Rules 164 and 433 under the Securities Act with respect or the Exchange Act, as applicable. Any further documents so filed, when such documents are filed or become effective by the Commission, as the case may be, will conform in all material respects to the offering requirements of the Placement Shares contemplated by Securities Act or the Registration Statement and the ProspectusExchange Act, as applicable.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has the Maryland with full corporate power and authority to own and or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus Prospectus, and to enter into and perform its obligations under this Agreement and, as general partner of the Operating Partnership, to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement and the Third Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended (the “Operating Partnership Agreement”), and is duly qualified to transact do business as a foreign corporation and is in good standing as a foreign corporation in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), prospects, earnings, properties, management, results of operations business or prospects properties of the Company, the Operating Partnership Company and the Subsidiaries (as hereinafter defined)its subsidiaries, taken as a whole, whether or (ii) prevent or materially interfere with consummation of the not arising from transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses ordinary course of business (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(jg) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the Michigan with full power and authority to own or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement, and is duly qualified to transact do business and is in good standing as a foreign limited partnership in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, not have a Material Adverse Effect.
(kh) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) subsidiary of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, formed and is validly existing as a corporation, limited partnership liability company or limited liability company partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the in which it is chartered or organized with full power and authority (corporate and other) to own or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus Prospectus, and is duly qualified to transact do business and is in good standing as a foreign corporation, limited partnership liability company or limited liability companypartnership, as the case may be, and is in good standing under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not have a Material Adverse Effect. .
(i) All of the issued outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other ownership interests of each Subsidiary subsidiary of the Company or the Operating Partnership have been duly authorized, and validly authorized and issued and are validly issued, fully paid and non-assessable, have been issued and, except as otherwise set forth in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units stock or other ownership interests of limited partnership interest and units of membership interest of each Subsidiary the Company’s subsidiaries are owned by the Company or the Operating Partnership either directly or indirectly, through wholly owned subsidiaries free and clear of all any perfected security interest or any other security interests, liensclaims, mortgages, encumbrances, pledges, claims liens, encumbrances or other defects restrictions of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is Except as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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 for, units of partnership interest in the Operating Partnership (“OP Units”) or interests for capital stock or other ownership interests in of any subsidiary of the Operating Partnership are outstandingCompany.
(sj) Except The Company’s authorized equity capitalization is as described set forth in the Registration Statement and the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Sales Agents pursuant to the terms of this Agreement, will be fully paid and non-assessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE; 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; pursuant to a Rights Agreement (the “Rights Agreement”), dated as of June 2, 2008, as amended, between the Company and Computershare Trust Company, N.A., as rights agent, the Common Stock is issued and trades with preferred share purchase rights (the “Rights”); the Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability; the Rights have been duly authorized by the Company and, when issued upon issuance of the Securities, will be validly issued, and the shares of Junior Participating Preferred Stock (as defined in the Company’s Organizational Documents) have been duly authorized by the Company and validly reserved for issuance upon the exercise in accordance with the terms of the Rights Agreement and will be validly issued, fully paid and non-assessable; except as set forth in 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; and all offers and sales by the Company of the 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. No holders of the Securities will be subject to personal liability for obligations of the Company solely by reason of being such a holder.
(tk) All of the issued and outstanding units of limited partnership (the “Units”) of the Operating Partnership have been duly and validly authorized and issued by the Operating Partnership and conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. None of the Units was issued or designated 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 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. The Placement Shares to be sold Units owned by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold are owned directly by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement SharesCompany, free and clear of all Liens. The certificates, if any, issuance of the common Units to be used issued by the Operating Partnership in connection with the contribution of the net proceeds from the sale of the Securities to evidence the Placement Shares Operating Partnership (the “New Common Units”) has been duly authorized, and, when issued and delivered by the Operating Partnership, the New Common Units will be validly issued and fully paid. The New Common Units will be exempt from registration or qualification under the Securities Act and applicable state securities laws. None of the New Common Units will be issued in substantially violation of the form preemptive or other similar rights of any security holder of the Operating Partnership or any other person or entity.
(l) There is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit tothereto, which is not described or filed as required; and the statements included or incorporated by reference in(A) in the Prospectus under the headings “Plan of Distribution” “Summary,” “Risk Factors,” “Use of Proceeds,” “Description of Common Stock,” “Description of Preferred Stock,” “Description of Units,” “The Operating Partnership Agreement,” and “Certain Provisions of Maryland Law and Our Charter and Bylaws”, (B) in Exhibit 99.1 to the Registration Statement Company’s Current Report on Form 8-K filed with the Commission on March 15, 2016, incorporated by reference in the Prospectus, under the heading “Material U.S. Federal Income Tax Considerations” and will be (C) in proper form and will comply in all material respects with all applicable legal requirements, the requirements Item 8.01 (Other Events) of the Articles Company’s Current Report on Form 8-K filed with the Commission on August 2, 2016, incorporated by reference in the Prospectus, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of Amendment such legal matters, agreements, documents or proceedings.
(m) This Agreement has been duly authorized, executed and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, delivered by each of the Company and the requirements of the NYSEOperating Partnership.
(un) The shares of Common Stock initially issuable upon conversion Neither the Company nor the Operating Partnership is, and after giving effect to the offering and sale of the Series D Preferred Stock have been duly authorized and, when issued upon conversion Securities and the application of the Series D Preferred Stock proceeds thereof as described in accordance the Prospectus will be, an “investment company” or “controlled” by an “investment company” as those terms are defined in the Investment Company Act of 1940, as amended.
(o) No consent, approval, authorization, filing with, registration, or order of any court or governmental agency or body is necessary or required for the performance by the Company and the Operating Partnership of their respective obligations hereunder in connection with the terms offering, issuance or sale of the Articles SupplementarySecurities hereunder or the consummation of the transactions contemplated by this Agreement, will be validly issued, fully paid and nonassessable, and the issuance of except such shares of Common Stock will not be subject toas have be
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that Manager as of the date hereof, hereof and as of each Representation Date (as defined below) on which a certificate is certificates are required to be delivered pursuant to Section 7(q)7(o) hereof, as of each Applicable Time and as of the time of each sale of any Placement Shares pursuant to this AgreementSettlement Date, as follows:
(a1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of Securities contemplated hereby and has prepared and filed with the Commission the Registration Statement on Form S-3 (File No. 333-274724). The Registration Statement has been declared effective by the Commission. No stop order preventing or suspending the use effectiveness of the Prospectus Registration Statement has been issued by the Commission, and the Prospectus, as of its date and as no proceeding for that purpose or pursuant to Section 8A of the date Securities Act has been initiated against the Company or, to the knowledge of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)Partnership, threatened by the Commission.
(A2) At the original effectiveness time of filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section Sections 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the earliest time thereafter that the Company or any person acting on its behalf another offering participant made a bona fide offer (within the meaning, for this clause only, meaning of Rule 163(c164(h)(2) under the Securities Act) made any offer relating to of the Securities in reliance Common Stock, on the exemption of Rule 163 under the Securities Actdate hereof and on each Representation Date, and (D) as of the date hereofeach Applicable Time and as of each Settlement Date, the Company was not, is not and is a will not be (as the case may be) an “well-known seasoned ineligible issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)Act).
(c3) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Prospectus, when filed and as of their respective dates, complied in all material respects with the Securities have been Act and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copies thereof delivered to the Manager and remain eligible Forward Seller for registration by use in connection with the Company on such automatic shelf registration statementoffer and sale of the Securities. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable at the time it became effective date and at each deemed effective date with respect to Agents the Manager and Forward Seller pursuant to Rule 430B(f)(2) under the Securities Act and at each Settlement Date, complied and will comply in all material respects with the Securities Act, Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Manager or the Forward Seller specifically for inclusion therein.
(4) Any documents incorporated by reference into the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; .
(5) The Prospectus does not and will not, as of its date and on each Representation Date, as of each Applicable Time and as of the date of the Prospectus and any amendment or supplement theretoeach Settlement Date, will not contain any 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; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, by or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements on behalf of the Exchange ActManager or the Forward Seller specifically for inclusion therein.
(d6) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than including, without limitation, any “road show” (as referred to defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in that is a free writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with prospectus under Rule 433 under the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, Act) did not and will not contain any 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; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e7) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the date of first use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company was has not made any offer relating to the Securities that would constitute an “ineligible issuer” Issuer Free Writing Prospectus without the prior written consent of the Manager. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act.
(8) The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Securities, will not distribute any offering material in connection with the offering or sale of the Securities other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus to which the Manager has consented, which consent will not be unreasonably withheld or delayed, or that is required by applicable law or the listing maintenance requirements of the NYSE.
(9) A number of shares of Common Stock equal to the Capped Number (as defined in Rule 405the Forward Contract) as have been duly authorized and reserved for issuance upon settlement of the eligibility determination date for purposes Forward Contract and, when issued and delivered by the Company to the Forward Purchaser pursuant thereto, against payment of Rules 164 any consideration required to be paid by the Forward Purchaser pursuant to the terms of the Forward Contract, the shares of Common Stock so issued and 433 delivered will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance of such shares of Common Stock will not be subject to any preemptive or other similar rights arising by operation of law, under the Securities Act with respect to the offering articles of incorporation, bylaws or other organizational documents of the Placement Shares contemplated by Company or any one of its subsidiaries or under any agreement to which the Company or any one of its subsidiaries is a party or otherwise, except as set forth in the Registration Statement and the Prospectus.
(f10) The Placement Shares have been authorized for listing on From the NYSE, subject to official notice time of issuance and the Company is in material compliance filing of the Registration Statement with the rules Commission through the date of the NYSEthis Agreement, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from been and is an “emerging growth company” as defined in Section 2(a) of the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSESecurities Act.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i11) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, Maryland and has the requisite corporate power and authority to own own, lease and lease, as operate its properties (the case may be, its property “Company Properties”) and to operate its property and conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and to enter into and perform its obligations under this Agreement, and, as the sole member and manager of the General Partner (as defined below), to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing as a foreign corporation in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationqualification is required, except to the extent that where the failure to be so qualified qualify or to be in good standing would not (i) not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the assets, business, condition (financial or otherwise), earningsbusiness, properties, managementassets, net worth, results of operations or prospects of the Company, Company and the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, or whole (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j12) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware and has the full requisite limited partnership power and authority to own or leaseown, as lease and operate its properties (the case may be, its property “OP Properties”) and to operate its property and conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and to enter into and perform its obligations under this Agreement. The Operating Partnership is duly qualified as a foreign limited partnership to transact business and is in good standing as a foreign limited partnership in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationqualification is required, except to the extent that where the failure to be so qualified qualify or to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Alpine Income Property GP, LLC, a Delaware limited liability company (the “General Partner”), is the sole general partner of the Operating Partnership. The aggregate percentage interests of the Company and the other limited partners in the Operating Partnership is as set forth in the Prospectus. The Amended and Restated Agreement of Limited Partnership of the Operating Partnership has been duly authorized, executed and delivered by the General Partner and is a legally valid and binding agreement of the General Partner, enforceable against the General Partner in accordance with its terms, except to the extent enforceability may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws.
(k13) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) subsidiary of the Company other than and the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, incorporated or formed and is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organizationincorporation or formation, and each such subsidiary has the full requisite corporate or similar power and authority to own or leaseown, as lease and operate its properties (collectively, with the case may beCompany Properties and the OP Properties, its property the “Properties”) and to operate its property and conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationqualification is required, except to the extent that where the failure to be so qualified qualify or to be in good standing would not not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other ownership interests of each Subsidiary subsidiary of the Company and the Operating Partnership have been duly authorized and validly issued, are (as applicable) fully paid and nonassessable and are owned by the Company or and the Operating Partnership Partnership, directly or indirectlyindirectly through subsidiaries, free and clear of all any security interests, liens, mortgages, encumbrances, pledges, claims equities or claims. None of the outstanding shares of capital stock or other defects ownership interests of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries subsidiary of the Company that are “significant subsidiaries” and the Operating Partnership was issued in violation of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it preemptive or similar rights of the transactions contemplated hereby have been duly and validly takensecurityholder of such subsidiary.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p14) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in Prospectus. All the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange outstanding shares of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms have been duly authorized and will conform validly issued and are fully paid and nonassessable. None of the outstanding shares of capital stock of the Company was issued in all material respects to violation of the description thereof contained in preemptive or similar rights of any securityholder of the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Company. Except as described in the Registration Statement and the Prospectus, there are no outstanding options, warrants or other similar rights to purchasesubscribe for, agreements or other contractual obligations to issue, sell, transfer or rights to convert acquire, any obligations shares of capital stock of the Company or any securities convertible into or exchange exercisable or exchangeable for any securities forshares of capital stock of the Company. The Securities to be issued and sold by the Company pursuant to this Agreement have been duly authorized and, units when issued and delivered against full payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and will not be issued in violation of partnership interest in the preemptive or similar rights of any securityholder of the Company.
(15) All of the issued and outstanding OP Units have been duly authorized for issuance by the Operating Partnership (“and validly issued. None of the issued and outstanding OP Units”) Units have been issued in violation of the preemptive or other ownership interests in similar rights of any securityholder of the Operating Partnership are outstanding.
(s) Partnership. All of the issued and outstanding OP Units were issued in transactions exempt from the registration requirements of the Securities Act and applicable state securities laws. Except as described in the Registration Statement and the Prospectus, there are no outstanding securities convertible into or exercisable or exchangeable for any OP Units and there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any 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 outstandingOperating Partnership.
(t16) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore Except as disclosed in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirementsthe Prospectus, the requirements Company has no outstanding stock options or other equity-based awards of the Articles or to purchase shares of Amendment Common Stock pursuant to an equity-based compensation plan or otherwise.
(17) This Agreement has been duly authorized, executed and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, delivered by each of the Company and the requirements of the NYSEOperating Partnership.
(u18) The shares of Common Stock initially issuable upon conversion This Agreement constitutes a valid and binding agreement of the Series D Preferred Stock have been duly authorized andCompany and the Operating Partnership, when issued upon conversion of enforceable against the Series D Preferred Stock Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the terms extent that any indemnification and contribution provisions hereof may be limited by federal or state securities laws or public policy considerations in respect thereof.
(19) The Management Agreement, dated November 26, 2019, among the Company, the Operating Partnership and the Adviser (the “Management Agreement”), remains in full force and effect. The Management Agreement has been duly authorized, executed and delivered by each of the Articles Supplementary, will be validly issued, fully paid and nonassessable, Company and the issuance Operating Partnership and constitutes a valid and legally binding agreement of such shares the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except to the extent enforceability may be limited by (i) the application of Common Stock will not bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be subject tobrought, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws.
(20) There are no legal or governmental proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened, against
Appears in 1 contract
Sources: Equity Distribution Agreement (Alpine Income Property Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementLead Managers, as of the date hereof, and any post-effective amendment theretoto the Lead Managers and each other International Manager named in the applicable International Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, an "International Representation Date"), as follows:
(i) The Registration Statement and the International Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateInternational Representation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each International Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The International Prospectus, as of the date hereof does not, and as of each International Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or International Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any International Manager through the Lead Managers expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary International prospectus, International Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusInternational Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby"1934 Act Regulations"), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the International Prospectus, at the time the Registration Statement became effective and as of the applicable International Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG Peat Marwick LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and International Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the International Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and International Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the International Prospectus present fairly the information required to be stated therein. The Company's ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the International Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the International Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the International Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act, the 1933 Act Regulations and guidelines of the American Institute of Certified Public Accountants with respect to pro forma financial information and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the International Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationInternational Prospectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i"Properties") or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (iia "Property Partnership") being herein (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the "Duke Group"), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a “Material Adverse Effect”).
whole; (jE) The neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been duly organized, is validly existing no material change in the short-term debt or long-term debt of the Duke Group as a limited whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in good standing under the laws Operating Partnership ("Units") and the issuance of Units in connection with the State acquisition of Delaware real or personal property, there has been no change in the full power and authority to own capital stock or leasein the partnership interests, as the case may be, its property and to operate its property and conduct its business as described in of the Registration Statement Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Prospectus Operating Partnership has been duly formed, and is duly qualified to transact business validly existing and is in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the International Prospectus and to enter into and perform its obligations under this Agreement, the International Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the International Prospectus.
(x) Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign limited partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a "Material Adverse Effect. All of ").
(xi) If the applicable International Securities are issued by the Company, and if the International Prospectus contains the caption "Capitalization," the authorized, issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company as of the date specified therein is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the Company.
(xii) If the applicable International Securities are issued by the Operating Partnership, and if the International Prospectus contains the caption "Capitalization," the partner's equity of the Operating Partnership is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code Section 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the "Services Partnership") and Duke Construction Limited Partnership (the "Construction Partnership"), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company that are “significant subsidiaries” Duke Group considered as a single enterprise. Duke Services, Inc. is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and DMI Partnership are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. The Services Partnership is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is owned 4.04% by the Services Partnership and 95.96% by DMI Partnership.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rxiv) Except as for transactions described in the Registration Statement International Prospectus and the Prospectustransactions in connection with dividend reinvestment plans, and stock option and other employee benefit plans, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company are outstandingCompany, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable International Securities, if such International Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the International Managers pursuant to this Agreement, and, when issued and delivered by the Company pursuant to this Agreement and the applicable International Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementInternational Terms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject tovalid
Appears in 1 contract
Sources: Form 8 K
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that each Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending The Company and the Operating Partnership meet the requirements for use of Form S-3, and the Prospectus Registration Statement has been issued declared effective by the Commission.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus and, if applicable, any Term Sheet to the Prospectus, as of its date and as of the date of any amendment or supplement hereof and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commissioneffective, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and when any post-effective amendment theretoto the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriters and Underwriters' counsel).
(c) Each 462(b) Registration Statement, if any, will comply when so filed in all material respects with all applicable provisions of the Act; will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty Prospectus delivered to the Underwriters for use in connection with respect the offering of Shares will, at the time of such delivery, be identical to any Agent Information. the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to Underwriters specifically for inclusion in the Registration Statement or Prospectus or any Agent Informationamendment or supplement thereto.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) Maryland. The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under the laws and by virtue of the State Delaware Uniform Limited Partnership Act. Each of Delaware has First Industrial Financing Partnership, L.P. (the full power "Financing Partnership"), First Industrial Securities, L.P. ("Securities, L.P."), First Industrial Mortgage Partnership, L.P. (the "Mortgage Partnership"), First Industrial Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services L.P. ("DSG") and authority First Industrial Pennsylvania Partnership, L.P. ("FIP") (the Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are referred to own or lease, collectively herein as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating "Partnership (each a “Subsidiary” and collectively the “Subsidiaries”") has been duly organized, organized and is validly existing as a corporation, limited partnership or limited liability company in good standing under and by virtue of the laws of the its jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toof
Appears in 1 contract
Sources: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to and agree with each of the Agent that Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Shares; no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge, are contemplated by the Commission; the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act;
(b) the Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at the time of purchase, each additional time of purchase, if any, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-11 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement did not, as of the Effective Time, 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; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as in all material respects with the requirements of the Act; at no time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending during the use of period that begins on the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any amendment Preliminary Prospectus, as then amended or supplement supplemented, 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, and on at no time during such period did or will any Settlement DatePreliminary Prospectus, did notas then amended or supplemented, does not and will not contain together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus will comply, as of its applicable effective date, the date that it is filed with the Commission, the time of purchase, each additional time of purchase, if any, and at each deemed effective date all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with respect to Agents pursuant to Rule 430B(f)(2172 under the Act or any similar rule) and at each Settlement Datein connection with any sale of Shares, complied and will comply in all material respects respects, with the Securities requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did not and or will not contain any the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and as of at no time during the period that begins on the date of the such Permitted Free Writing Prospectus and ends at the time of purchase did or will any amendment or supplement thereto, will not contain any Permitted Free Writing Prospectus 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; provided, however, that the Company and the Operating Partnership make no representation and or warranty in this Section 3(b) with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference statement contained in the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Preliminary Prospectuses and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is accompanied or preceded by the most recent Preliminary Prospectus that contains a price range or the Prospectus, at as the time case may be, and that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), complied the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will complysatisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), in all respects to (c) and (d) of Rule 164); the Preliminary Prospectus dated [ ] is a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, including a price range where required by rule; neither the Company nor the Underwriters are disqualified, by reason of subsection (including its agents f) or (g) of Rule 164 under the Act, from using, in connection with the offer and representativessale of the Shares, other than “free writing prospectuses” (as defined in Rule 405 under the Agents in their capacity as suchAct) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 Rules 164 and 433 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 misleadingAct; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement, without taking into account any determination by the Commission pursuant to Rule 405 under the Act that it is not necessary under the circumstances that the Company be considered an “ineligible issuer”; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Shares contemplated hereby is solely the property of the Company; the Company has caused there to be made available at least one version of a “bona fide electronic road show” (as defined in Rule 433 under the Act) in a manner that, pursuant to Rule 433(d)(8)(ii) under the Act, causes the Company not to be required, pursuant to Rule 433(d) under the Act, to file, with the Commission, any Electronic Road Show;
(d) as of the date of this Agreement, the Company has an authorized and outstanding capitalization as set forth in the sections of the Registration Statement, the Preliminary Prospectuses and the Prospectus entitled “Capitalization” and “Description of stock” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the time of purchase and any additional time of purchase, as the case may be, the Company shall have an authorized and outstanding capitalization as set forth in the sections of the Registration Statement, the Preliminary Prospectuses and the Prospectus entitled “Capitalization” and “Description of stock” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) (subject, in each case, to the issuance of shares of Common Stock upon exercise of stock options and warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus and the grant of options under existing stock option plans described in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus.
(f) The Placement Shares ); all of the issued and outstanding shares of capital stock, including the Common Stock, of the Company have been duly authorized and validly issued and are fully paid and non-assessable, have been issued in compliance with all applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right; the Shares are duly listed, admitted and authorized for listing on the NYSEtrading, subject to official notice of issuance and the Company is in material compliance with the rules evidence of the NYSEsatisfactory distribution, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.;
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (iie) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has the with full corporate power and authority to own own, lease and lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, to execute and deliver this Agreement, to issue, sell and deliver the Shares as contemplated herein, to execute and deliver the Formation Transaction Agreements to which it is a party and to perform its obligations as contemplated therein;
(f) the Company is duly qualified to transact do business as a foreign corporation and is in good standing as a foreign corporation in each jurisdiction in which where the ownership or leasing of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be and in good standing would not not, individually or in the aggregate, either (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, managementfinancial condition, results of operations or prospects of the Company, the Operating Partnership Company and the Subsidiaries (as hereinafter defined), defined below) taken as a whole, or (ii) prevent or materially interfere with the consummation of the transactions contemplated hereby or (iii) prevent the shares of Common Stock from being accepted for listing on, or result in the delisting of shares of Common Stock from, the NYSE (the occurrence of any such effect, prevention, effect or any such prevention or interference or any such result described in the foregoing clauses (i) or ), (ii) and (iii) being herein referred to as a “Material Adverse Effect”).;
(jg) The the Company has no subsidiaries (as defined under the Act) other than the Subsidiaries; except as disclosed in the Registration Statement, each Preliminary Prospectus and the Prospectus, the Company owns directly or indirectly all of the issued and outstanding capital stock or other equity interests of each of the Subsidiaries; except as disclosed in the Registration Statement, each Preliminary Prospectus and the Prospectus, other than the capital stock or other equity interests of the Subsidiaries, the Company does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity; complete and correct copies of the charters and the bylaws (or comparable organizational documents) of the Company, each Subsidiary and each Principal Controlled Investor, and all amendments thereto have been made available to you, and, except as set forth in the exhibits to the Registration Statement, no changes therein will be made on or after the date hereof through and including the time of purchase or, if later, any additional time of purchase; to the knowledge of the Company and the Operating Partnership Partnership, complete and correct copies of the charters and the bylaws (or comparable organizational documents) of each Third Party Investor, and all amendments thereto have been made available to you, and, to the knowledge of the Company and the Operating Partnership, except as set forth in the exhibits to the Registration Statement, no changes therein will be made on or after the date hereof through and including the time of purchase or, if later, any additional time of purchase; each Subsidiary has been duly organized, organized and is validly existing as a corporation, limited partnership liability company, limited partnership, or trust, as applicable, in good standing under the laws of the State jurisdiction of Delaware has the its organization, with full power and authority authority, corporate or otherwise, to own or leaseown, as the case may be, lease and operate its property properties and to operate its property and conduct its business as described in the Registration Statement and Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any; each Subsidiary is duly qualified to transact do business as a foreign corporation, limited liability company, limited partnership, or trust, as applicable, and is in good standing as a foreign limited partnership in each jurisdiction in which where the ownership or leasing of its properties or the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be and in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (; the Operating Partnership has full power and authority to execute and deliver this Agreement, to perform its obligations as defined in Rule 1-02(w) contemplated herein, to execute and deliver the Formation Transaction Agreements to which it is a party and to perform its obligations as contemplated therein; each of Regulation S-X) the Principal Controlled Investors and, to the knowledge of the Company other than and the Operating Partnership (Partnership, each a “Subsidiary” and collectively of the “Subsidiaries”) Third Party Investors has been duly organized, organized and is validly existing as a corporation, limited partnership liability company, limited partnership, or limited liability company trust, as applicable, is in good standing under the laws of the jurisdiction of its organization, organization and has the full power and authority authority, corporate or otherwise, to own or lease, as execute and deliver the case may be, its property Formation Transaction Agreements to which it is a party and to operate perform its property and conduct its business obligations as described contemplated therein; the Company is the sole member of the general partner of the Operating Partnership; except as disclosed in the Registration Statement Statement, each Preliminary Prospectus and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporationProspectus, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All all of the issued outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other equity interests of each Subsidiary of the Company or the Operating Partnership Subsidiaries have been duly authorized, are authorized and validly issued, are fully paid and non-assessable, have been issued in compliance with all applicable securities laws and laws, were not issued in violation of any preemptive right, resale right, right of first refusal or similar rights. Except right and are owned by the Company subject to no security interest, other encumbrance or adverse claims; and, except as disclosed in the Registration Statement and the ProspectusStatement, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Preliminary Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, issue or other rights to convert any obligations obligation into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 Subsidiaries are outstanding.;
(th) The Placement the Shares to be sold by the Company have been duly and validly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreementtherefor as provided herein, will be duly and validly issued, fully paid and non-assessableassessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of ; the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementaryand delivered against payment therefor as provided herein, will be validly issuedfree of any restriction upon the voting or transfer thereof pursuant to the Maryland General Corporation Law or the Company’s charter or bylaws or any agreement or other instrument to which the Company is a party; the Company will contribute the net proceeds from the sale of the Shares, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toas set forth in the
Appears in 1 contract
Sources: Underwriting Agreement (Welsh Property Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that Representatives, as of the date hereof, and to the Representatives and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q“Representation Date”), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) Pursuant to the 1933 Act and the 1933 Act Regulations, the Registration Statement automatically became effective upon the filing thereof with the Commission; no stop order suspending the effectiveness of the Registration Statement has been received by the Company, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. The Registration Statement is an “automatic effective registration statement” as defined under Rule 405 of the 1933 Act that has been filed with the Commission not earlier than three years prior to the date hereof; 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) under the 1933 Act has been received by the Company or the Operating Partnership. No stop order preventing or suspending the use of the Time of Sale Prospectus or the Prospectus has been issued received by the CommissionCompany, and, to the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission or by the state securities authority of any jurisdiction. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the 1933 Act, the Company or the Operating Partnership, as applicable, is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the ProspectusCompany or the Operating Partnership, as applicable has not received notice that the Commission objects to the use of its date the Registration Statement as an automatic shelf registration statement.
(ii) The Registration Statement at the time the Registration Statement became effective, complied, and as of each Representation Date will comply, in all material respects with the date requirements of any amendment or supplement the 1933 Act, the 1933 Act Regulations and on any Settlement Datethe 1939 Act and the rules and regulations thereunder (the “1939 Act Regulations”). The Registration Statement, at the time the Registration Statement became effective, did not, does and as of each Representation Date, 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. The Time of Sale Prospectus, at the time of each sale of the applicable Underwritten Securities (the “Applicable Time”), the Closing Time and the Date of Delivery, if any, as then amended or supplemented by the Company, if applicable, will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretoProspectus, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date Closing Time and Date of the Prospectus and any amendment or supplement theretoDelivery, if any, will not contain any 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; provided. Notwithstanding the foregoing, however, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the “Statement of Eligibility”) of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(iii) Each preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and warranty any Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 433 (to the extent prepared by the Company) under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iv) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement Statement, the Time of Sale Prospectus and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby“1934 Act Regulations”), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(v) Each of the Company and the Operating Partnership is not an “ineligible issuer” in connection with the offering of the applicable Underwritten Securities pursuant to Rules 164, however405 and 433 under the 1933 Act. Any free writing prospectus that the Company or the Operating Partnership is required to file pursuant to Rule 433(d) under the 1933 Act has been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company and the Operating Partnership make no representation has filed, or is required to file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Company and warranty the Operating Partnership complies or will comply in all material respects with respect the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I to the applicable Terms Agreement, and electronic road shows each furnished to you before first use, if any, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any Agent Informationfree writing prospectus.
(evi) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) The Company was not an financial statements included in, or incorporated by reference into, the Registration Statement, Time of Sale Prospectus and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement, Time of Sale Prospectus and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information required to be stated therein. The Company’s ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption “ineligible issuerRatios of Earnings to Fixed Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement, Time of Sale Prospectus and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement, Time of Sale Prospectus and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(as defined in Rule 405viii) Since the respective dates as of which information is given in the eligibility determination date for purposes Registration Statement, the Time of Rules 164 Sale Prospectus and 433 under the Securities Act with respect to Prospectus (in the offering case of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”as updated by information incorporated by reference therein), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as otherwise stated therein, (A) there has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described no material adverse change in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationcondition, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), or in the earnings, properties, management, results of operations assets or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined) as a whole, in the condition, financial or otherwise, or in the earnings, assets or business prospects of any of the real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the “Properties”) or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (a “Property Partnership”) (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the “Duke Group”), whether or not arising in the ordinary course of business; (C) no casualty loss, condemnation or other adverse event with respect to any Property has occurred, which is material to the Duke Group taken as a whole; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a whole; (E) neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (iiF) prevent there has been no material change in the short-term debt or materially interfere with consummation long-term debt of the transactions contemplated hereby Duke Group as a whole; (G) except for quarterly dividends on the occurrence Common Stock and dividends on the Preferred Stock, there has been no dividend or distribution of any such effectkind declared, preventionpaid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, interference the issuance of shares of Common Stock upon the exchange of partnership interests in the Operating Partnership (“Units”) and the issuance of Units in connection with the acquisition of real or result personal property, there has been no change in the capital stock or in the partnership interests, as the case may be, of the Company, the Operating Partnership or any subsidiary.
(ix) Each of the Company and the Operating Partnership has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the foregoing clauses Time of Sale Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company’s and the Operating Partnership’s subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Time of Sale Prospectus.
(iixi) being herein referred Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business prospects of the Duke Group considered as a single enterprise (a “Material Adverse Effect”).
(jxii) The Operating Partnership has If the applicable Underwritten Securities are issued by the Company, and if the Time of Sale Prospectus contains the caption “Capitalization,” the authorized, issued and outstanding shares of capital stock of the Company as of the date specified therein is as set forth in the column entitled “Historical” under such caption. All the issued and outstanding shares of capital stock of the Company have been duly organizedauthorized and are validly issued, is validly existing as a limited partnership fully paid and non-assessable and have been offered and sold in good standing under the compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCompany.
(kxiii) Each If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Time of Sale Prospectus contains the caption “significant subsidiaryCapitalization,” (as defined in Rule 1-02(w) the partner’s equity of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described set forth in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires column entitled “Historical” under such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectcaption. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiv) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the “Services Partnership”) and Duke Construction Limited Partnership (the “Construction Partnership”), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or other defects of any kind (collectively, “Liens”)equity. Schedule 3 hereto specifically identifies all subsidiaries of Neither the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in nor the Operating Partnership (“OP Units”) owns any direct or indirect equity interest in any entity other ownership than the subsidiaries and the Property Partnerships, except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise. The Company is the sole general partner and a 1% owner of the Services Partnership, and the Operating Partnership and Duke Management, Inc. are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toth
Appears in 1 contract
Sources: Terms Agreement (Duke Realty Corp)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to to, and agree with, the Agent Sales Agents that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information Applicable Time (as defined in Section 9(a) hereof21(a).):
(Aa) At The Company meets the original effectiveness requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Commission 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 registration under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, offering and no proceeding for that purpose or pursuant to Section 8A sale of the Securities Act against the Company or related Securities. Such Registration Statement, including any amendments thereto filed prior to the offering of the Placement Shares Applicable Time, has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commissionbecome effective. The Registration Statement, as of at the date hereofApplicable Time, meets the requirements set forth in Rule 415(a)(1)(x). At the Applicable Time, the Registration Statement did, and any post-effective amendment theretowhen the Prospectus is first filed in accordance with Rule 424(b), as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datethe Prospectus will, complied and will comply in all material respects with the applicable requirements of the Securities ActAct and the Exchange Act and the respective rules thereunder; and at the Applicable Time, and the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of on the date of any filing pursuant to Rule 424(b), the Prospectus and any amendment or supplement thereto, will not contain 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 in reliance upon and in conformity with information furnished in writing to the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, Company by or to be incorporated, by reference on behalf of the Sales Agents specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto), it being understood and agreed that the Prospectus, at only such information furnished by or on behalf of the time filed with Sales Agents consists of the information described as such in Section 9(a) 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, complied or will comply, in all respects to the requirements knowledge of the Exchange ActCompany, no proceeding for that purpose has been instituted or threatened by the Commission or by the state securities authority or any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and, to the knowledge of the Company, no proceeding for that purpose has been instituted by the Commission or by the state securities authority of any jurisdiction.
(di) Other than At the earliest time after the filing of the Registration Statement and the Prospectus, that the Company or another offering participant made a bona fide offer (including its agents and representatives, other than within the Agents in their capacity as suchmeaning of Rule 164(h)(2) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(aunder the Securities Act) of the Securities Act or and (ii) as of the Applicable 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 134 405 under the Securities Act or (ii) each electronic road show and Act), without taking account of any other written communications approved in writing in advance determination by the AgentCommission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer. The Company is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act).
(c) Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and or will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the ProspectusStatement, including any document included or incorporated by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified andmodified. The foregoing sentence does not apply to statements in or omissions from any Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agents specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of the Sales Agents consists of the information described as such in Section 9(a) hereof.
(d) All documents filed by the Company pursuant to Sections 12, 13, 14 or 15 of the Exchange Act and incorporated by reference into the Registration Statement or the Prospectus, when taken together they became effective or were filed with the Prospectus accompanyingCommission, or delivered prior to delivery ofas the case may be, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a complied in all material fact or omit to state a material fact necessary in order to make respects with the statements therein, in the light requirements of the circumstances under which they were made, not misleading; provided, however, that the Company Securities Act and the Operating Partnership make no representation rules and warranty with respect regulations thereunder or the Exchange Act and the rules and regulations thereunder, as applicable. Any further documents so filed, when such documents are filed or become effective by the Commission, as the case may be, will conform in all material respects to any Agent Informationthe requirements of the Securities Act and the rules and regulations thereunder or the Exchange Act and the rules and regulations thereunder, as applicable.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has the Maryland with full corporate power and authority to own and or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus Prospectus, and to enter into and perform its obligations under this Agreement and as general partner of the Operating Partnership to cause the Operating Partnership to enter into and perform the Operating Partnership's obligations under this Agreement and the Second Amended and Restated Limited Partnership Agreement of the Operating Partnership, as amended (the “Operating Partnership Agreement”), and is duly qualified to transact do business as a foreign corporation and is in good standing as a foreign corporation in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), prospects, earnings, properties, management, results of operations business or prospects properties of the Company, the Operating Partnership Company and the Subsidiaries (as hereinafter defined)its subsidiaries, taken as a whole, whether or (ii) prevent or materially interfere with consummation of the not arising from transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses ordinary course of business (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(jf) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the Michigan with full power and authority to own or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement, and is duly qualified to transact do business and is in good standing as a foreign limited partnership in under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, not have a Material Adverse Effect.
(kg) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) subsidiary of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, formed and is validly existing as a corporation, limited partnership liability company or limited liability company partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the in which it is chartered or organized with full power and authority (corporate and other) to own or lease, as the case may be, its property and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus Prospectus, and is duly qualified to transact do business and is in good standing as a foreign corporation, limited partnership liability company or limited liability companypartnership, as the case may be, and is in good standing under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would not have a Material Adverse Effect. .
(h) All of the issued outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other ownership interests of each Subsidiary subsidiary of the Company or the Operating Partnership have been duly authorized, and validly authorized and issued and are validly issued, fully paid and non-assessable, have been issued and, except as otherwise set forth in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units stock or other ownership interests of limited partnership interest and units of membership interest of each Subsidiary the Company's subsidiaries are owned by the Company or the Operating Partnership either directly or indirectly, through wholly owned subsidiaries free and clear of all any perfected security interest or any other security interests, liensclaims, mortgages, encumbrances, pledges, claims liens, encumbrances or other defects restrictions of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is Except as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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 for, units of partnership interest in the Operating Partnership (“OP Units”) or interests for capital stock or other ownership interests in of any subsidiary of the Operating Partnership are outstandingCompany.
(si) Except The Company's authorized equity capitalization is as described set forth in the Registration Statement and the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and non-assessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Sales Agents pursuant to the terms of this Agreement, will be fully paid and non-assessable; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE; 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; pursuant to a Rights Agreement (the “Rights Agreement”) dated as of June 2, 2008, between the Company and Computershare Trust Company, N.A., as rights agent, the Common Stock is issued and trades with preferred share purchase rights (the “Rights”); the Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally or by equitable principles relating to enforceability; the Rights have been duly authorized by the Company and, when issued upon issuance of the Securities, will be validly issued, and the shares of Junior Participating Preferred Stock (as defined in the Company's Organizational Documents) have been duly authorized by the Company and validly reserved for issuance upon the exercise in accordance with the terms of the Rights Agreement and will be validly issued, fully paid and non-assessable; except as set forth in 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.
(t) The Placement Shares ; and all offers and sales by the Company of the Common Stock prior to be sold 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. Any stock options issued by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance compliance with the terms of this Agreement, will be validly issued, fully paid and non-assessableapplicable law, and the issuance terms and provisions of such Placement Shares will stock options were established in compliance with applicable law except as would not be subject have a Material Adverse Effect.
(j) All of the issued and outstanding units of limited partnership (the “Units”) of the Operating Partnership have been duly and validly authorized and issued by the Operating Partnership and conform in all material respects to or the description thereof contained in the Registration Statement and the Prospectus. None of the Units was issued in violation of any the preemptive or other similar rights. Upon payment rights of any security holder of the purchase price and issuance and delivery Operating Partnership or any other person or entity. Except as set forth in 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 Placement Shares to be issued and sold Operating Partnership. The Units owned by the Company in accordance herewith, are owned directly by the purchasers thereof will receive good, valid and marketable title to such Placement SharesCompany, free and clear of all Liens. The certificates, if any, issuance of the common Units to be used issued by the Operating Partnership in connection with the contribution of the net proceeds from the sale of the Securities to evidence the Placement Shares Operating Partnership has been duly authorized, and, when issued and delivered by the Operating Partnership, the Units will be validly issued and fully paid.
(k) There is no franchise, contract or other document of a character required to be described in substantially the form Registration Statement or the Prospectus, or to be filed as an exhibit tothereto, which is not described or filed as required; and the statements included or incorporated by reference in(A) in the Prospectus under the headings “Plan of Distribution” and “Business Risks-Certain provisions in our governing documents may make it difficult for a third-party to acquire us,” “Summary,” “Risk Factors,” “Use of Proceeds,” “Description of Common Stock,” “Description of Preferred Stock” and “Material Federal Income Tax Considerations” insofar as such statements summarize legal matters, the Registration Statement agreements, documents or proceedings discussed therein, are accurate and will be in proper form fair summaries of such legal matters, agreements, documents or proceedings.
(l) This Agreement has been duly authorized, executed and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, delivered by each of the Company and the requirements of the NYSEOperating Partnership.
(um) The shares of Common Stock initially issuable upon conversion Neither the Company nor the Operating Partnership is, after giving effect to the offering and sale of the Series D Preferred Stock Securities and the application of the proceeds thereof as described in the Prospectus, will be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(n) 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 duly authorized and, when issued upon conversion obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Series D Preferred Stock Securities by the Sales Agents in accordance with the manner contemplated herein and in the Prospectus.
(o) 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 by the Company 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, note agreement, loan agreement or other agreement (including, without limitation, the Articles SupplementaryCommon Stock Purchase Agreement, will be validly issueddated August 6, fully paid 2010, by and nonassessableamong the Company, the Operating Partnership and REIT Opportunity, Ltd.), obligation, condition, covenant or instrument to which the issuance Company or any of its subsidiaries is a party or bound or to which its or their property is subject, except as would not have a Material Adverse Effect and would not have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby, 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 as would not have a Material Adverse Effect and would not have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby.
(p) Except as set forth in the Prospectus, no holders of securities of the Company have rights to the registration of such shares of Common Stock will not be subject tosecurities under the Registration Statement. Except as set forth in the Prospectus, there are no contracts, agre
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to to, and agree with, each of the Agent that Underwriters as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), hereof and as of the time of Closing Date and each sale of any Placement Shares pursuant to this AgreementAdditional Closing Date (each as defined in Section 2 below) that:
(a) No order preventing or suspending The Company has filed with the use Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-38071), and amendments thereto, and related preliminary prospectuses for the registration under the Securities Act of 1933, as amended (the "Securities Act"), of the Prospectus Shares which registration statement, as so amended, has been issued declared effective by the Commission, Commission and copies of which have heretofore been delivered to the ProspectusUnderwriters. The registration statement, as of its date amended at the time it became effective, including the exhibits and as information (if any) deemed to be part of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue registration 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed effectiveness pursuant to Section 13 Rule 430A or 15(d) of the Exchange 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(c434(d) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 rules and regulations promulgated under the Securities Act, and (D) is hereinafter referred to as of the date hereof, "Registration Statement." If the Company was and has filed or is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or required pursuant to Section 8A of the Securities Act against the Company or related terms hereof to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents file a registration statement pursuant to Rule 430B(f)(2462(b) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or the Rules and Regulations increasing the size of the Offering by registering additional shares of Common Stock (iia "Rule 462(b) each electronic road show and Registration Statement"), then, unless otherwise specified, any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, became effective upon filing, no other written communications approved in writing in advance by document with respect to the AgentRegistration Statement has heretofore been filed with the Commission. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with All of the Shares have been registered under the Securities Act (pursuant to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectusor, including if any document incorporated by reference therein that has not been superseded or modified andRule 462(b) Registration Statement is filed, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 be duly registered under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation filing of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”Rule 462(b), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (Crescent Real Estate Equities Co)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and Prime Retail, L.P., a Delaware limited partnership (the "Operating Partnership"), jointly and severally, represent and warrant to the Agent that to, and agree with, you as of the date hereofhereof and to you and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q"Representation Date"), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(ai) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of at the date hereoftime it became effective, complied, and any post-effective amendment thereto, as of its applicable effective date and the Registration Statement at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and Representation Date will comply in all material respects with the Securities Act, requirements of the 1933 Act and did not the 1933 Act Regulations and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; , and as of the date of the Prospectus and any amendment or supplement amendments and supplements thereto, at each Representation Date (unless the term "Prospectus" refers to a prospectus that has been provided to you by the Company for use in connection with the offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement became effective, in which case at the time it is first provided to you for such use) and at the Closing Time referred to in Section 2(c) hereof, will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in any statement provided by the Underwriters in writing for the express purpose of being included in the Prospectus. If the Company elects to rely upon Rule 434 of the 1933 Act Regulations, the Company will comply with Rule 434. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Operating Partnership make no representation and warranty Underwritten Securities, the Company has complied or will comply with respect the requirements of Rule 111 of the 1933 Act Regulations relating to any Agent Information. the payment of filing fees therefor.
(ii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission thereunder (to the extent required thereby)"1934 Act Regulations") and, and did not, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of each Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(a)(v), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiii) The Company was not an “ineligible issuer” (as defined in Rule 405) as No stop order suspending the effectiveness of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement or any part thereof has been issued and the Prospectus.
(f) The Placement Shares have no proceeding for that purpose has been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending instituted or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplated, and by the Company has not received state securities authority of any notice from jurisdiction. No order preventing or suspending the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge use of the CompanyProspectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there threatened by the Commission or by the state securities authority of any jurisdiction.
(iv) Ernst & Young LLP, who have certified the financial statements and financial statement schedules included in or incorporated by reference into the Registration Statement and the Prospectus, are no affiliations independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The financial statements (including the notes thereto) included in or associations between (i) any member incorporated by reference into the Registration Statement and the Prospectus present fairly the financial position of the Financial Industry Regulatory Authority, Inc. (“FINRA”)respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified, and except as otherwise stated in the Registration Statement, such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis. The financial statement schedules included in or incorporated by reference into the Registration Statement present fairly the information required to be stated therein. The financial information and data included in or incorporated by reference into the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included in or incorporated by reference into the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Other than the historical or pro forma financial statements (iiand schedules) included or incorporated by reference therein, no other historical or pro forma financial statements (or schedules) are required by the Company 1933 Act or any the 1933 Act Regulations to be included in or incorporated by reference into the Registration Statement. Except as reflected or disclosed in the financial statements included in or incorporated by reference into the Registration Statement or otherwise set forth in the Prospectus, none of the Company’s officers, directorsthe Operating Partnership or the Significant Subsidiaries (as hereinafter defined) are subject to any material indebtedness, obligation, or 5% liability, contingent or greater security holders or any beneficial owner of otherwise, known to the Company’s unregistered equity securities that were acquired at any time on or after .
(vi) Since the 180th day immediately preceding respective dates as of which information is given in the date of Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been disclosed no material adverse change in the condition, financial or otherwise, or in the earnings, assets, or business affairs of the Company, the Operating Partnership and the Significant Subsidiaries considered as a single enterprise, whether or not arising in the ordinary course of business, (B) no material casualty loss or material condemnation or other material adverse event has occurred with respect to any of the Representatives Properties (as the same are defined in writingthe Prospectus), (C) there have been no acquisitions or other transactions entered into by the Company, the Operating Partnership or any Significant Subsidiary that are material with respect to such entities, considered as a single enterprise, or would result in any inaccuracy in the representations contained in Section 1(a)(v) above, (D) there has been no dividend or distribution of any kind declared, paid, or made by the Company on any class of its capital stock or by the Operating Partnership with respect to its partnership interests, (E) there has been no change in the capital stock of the Company or the partnership interests of the Operating Partnership or any Significant Subsidiary, and (F) there has been no increase in the indebtedness of the Company, the Operating Partnership or any Significant Subsidiary that is material to such entities, considered as a single enterprise.
(ivii) The Company has been duly incorporated, incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has the with corporate power and authority to own and leaseits properties, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Prospectus and to enter into and perform its obligations under this Agreement, the applicable Terms Agreement, any Deposit Agreement, the Delayed Delivery Contracts (as defined herein), any Common Stock Warrant Agreement and any Preferred Stock Warrant Agreement and the Prospectus and other agreements to which it is a party. The Company has been duly qualified to transact as a foreign corporation for the transaction of business and is in good standing as a foreign corporation in under the laws of each other jurisdiction in which such qualification is required, whether by reason of the ownership, leasing, or management of any properties or the conduct of its business or its ownership or leasing of property requires such qualificationany other business, except to the extent that where the failure to be so qualified or be in good standing qualify would not (i) have a material adverse effect on the assetscondition, business, condition (financial or otherwise), or the earnings, properties, management, results of operations assets or prospects business affairs of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)Significant Subsidiaries, taken considered as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)single enterprise.
(jviii) The Operating Partnership and each other partnership which directly owns the Company's interests in the Properties (each such partnership individually, other than the Operating Partnership, a "Property Partnership" and collectively, the "Property Partnerships") has been duly organized, organized and is validly existing as a limited partnership in good standing (to the extent applicable) under the laws of the State its jurisdiction of Delaware has the full organization, with partnership power and authority to own or leaseits properties, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Prospectus and, with respect to the Operating Partnership, enter into and perform its obligations under this Agreement, the applicable Terms Agreement, any Deposit Agreement, the Delayed Delivery Contracts, any Common Stock Warrant Agreement and any Preferred Stock Warrant Agreement and the Prospectus other agreements to which it is a party. The Operating Partnership and is each Property Partnership has been duly qualified to transact for the transaction of business and is in good standing as a foreign limited partnership in (to the extent applicable) under the laws of each other jurisdiction in which such qualification is required, whether by reason of the ownership, leasing, or management of any properties (including the Properties) or the conduct of its business or its ownership or leasing of property requires such qualificationany other business, except to the extent that where the failure to be so qualified qualify would not have a material adverse effect on the condition, financial or be otherwise, or the earnings, assets or business affairs of the Company, the Operating Partnership and the Significant Subsidiaries, considered as a single enterprise. All of the partnership interests in good standing would noteach Property Partnership have been duly and validly authorized and issued, individually or are fully paid, and (except as described in the aggregateProspectus) are owned directly or indirectly by the Company or the Operating Partnership, have a Material Adverse Effectfree and clear of all liens, encumbrances, equities or claims.
(kix) Each “significant subsidiary” (as defined in Significant Subsidiary within the meaning of Rule 1-02(w) 02 of Regulation S-X) of X (the Company other than the Operating Partnership (each a “"Significant Subsidiary” and collectively the “Subsidiaries”") has been duly organized, formed and is validly existing as a corporation, limited partnership or limited liability company and in good standing under the laws of the jurisdiction of its organization, formation. Each Significant Subsidiary has the full power and authority to own or leaseown, as the case may be, lease and operate its property properties and to operate its property and conduct its the business as described in the Registration Statement and the Prospectus which it is engaged, and is duly qualified to transact business as a foreign corporation or partnership and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each other jurisdiction in which the conduct of its business or its ownership or leasing of property requires where such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effectqualification is required. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited LLC interests and partnership interest and units of membership interest interests of each Significant Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed thereinvalidly issued, are accurategully paid and are owned free and clear of security interest, complete and fair summaries of such agreementsmortgage, documents pledge, lien, encumbrance, claim or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is equity other than as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized ownership of the shares of capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except each Significant Subsidiary is as described in the Registration Statement and the or 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent represent, warrant and warrant covenant to the Agent that Manager as of the date hereof, hereof and as of each Representation Date (as defined below) on which a certificate is certificates are required to be delivered pursuant to Section 7(q)8(o) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agrees with the time of each sale of any Placement Shares pursuant to this AgreementManager, as follows:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have has been and remain eligible for registration declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares Securities has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany, threatened by the Commission.
(b) At the time of initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated reported filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities, on the date hereof and on each Representation Date, as of each Applicable Time and as of each Settlement Date, the Company was not, is not and will not be (as the case may be) an “ineligible issuer” (as defined in Rule 405 under the Securities Act (without taking into account any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer)) in connection with the offering of the Securities pursuant to Rules 164, 405 and 433 under the Securities Act.
(c) The Registration Statement and the Prospectus, when filed and as of their respective dates, complied in all material respects with the Securities Act and, if filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copies thereof delivered to the Manager for use in connection with the offer and sale of the Securities. The Registration Statement, as of the date hereof, Statement and any post-effective amendment thereto, as of its applicable at the time it became effective date and at each deemed effective date with respect to Agents the Manager pursuant to Rule 430B(f)(2) of the Securities Act and at each Settlement Date, complied and will comply in all material respects with the Securities Act, Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and .
(d) The Registration Statement did not as of the its effective date of the Prospectus and any amendment or supplement thereto, will not contain any 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; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of the Manager specifically for inclusion therein.
(e) Any documents incorporated by reference into the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(f) The Prospectus will not, as of its date and on each Representation Date, as of each Applicable Time and as of each Settlement Date, 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, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, Representative by or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements on behalf of the Exchange ActManager specifically for inclusion therein.
(dg) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than including, without limitation, any “road show” (as referred to defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (iiAct) each electronic road show and any other written communications approved in that is a free writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with prospectus under Rule 433 under the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, Act) did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eh) The Company was not an “ineligible issuer” (as defined Each Issuer Free Writing Prospectus conformed or will conform in Rule 405) as all material respects to the requirements of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Securities that would constitute an Issuer Free Writing Prospectus without the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge prior written consent of the Company, there are no contracts or documents of a character which are Manager. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingSecurities Act.
(i) The Company has been not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Securities, will not distribute any offering material in connection with the offering or sale of the Securities other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus to which the Manager has consented, which consent will not be unreasonably withheld or delayed, or that is required by applicable law or the listing maintenance requirements of the NYSE.
(j) The capitalization of the Company is as set forth in the Registration Statement and the Prospectus. All the outstanding shares of capital stock of the Company have been, and as of each Settlement Date, will be, duly incorporatedauthorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement and the Prospectus; except as described in the Registration Statement and the Prospectus, the Company is not a party to or bound by any outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such capital stock.
(k) Each of the Company, the Operating Partnership and their subsidiaries is duly formed or organized and validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties and to operate its property and conduct its business as presently conducted and as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to so register or qualify would not, individually or in the aggregate, reasonably be so qualified or be in good standing would not (i) expected to have a material adverse effect on the assetscondition, business, condition (financial or otherwise), earnings, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, whole (financial or otherwise) (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder (including the issuance and sale of the Securities and the use of proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”), and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(nm) The Articles Supplementary Securities to be purchased by the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Manager pursuant to this Agreement have been duly authorized for issuance, sale and duly executed delivery and, when issued and delivered by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization pursuant to this Agreement against payment of the Company is as consideration set forth in the Registration Statement herein, will be validly issued, fully paid and the Prospectus (nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to as disclosed in the Registration Statement and the Prospectus, the issuance of such Securities will not be subject to any preemptive, co-sale right, registration right, right of first refusal or similar rights.
(iiin) pursuant All of the issued and outstanding shares of capital stock of the Company: (i) have been duly authorized and validly issued, are fully paid and nonassessable and (ii) have been issued in compliance with federal and state securities laws.
(o) All of the issued and outstanding OP Units and the Series A Preferred Units have been duly authorized for issuance by the Operating Partnership and its general partner and validly issued. The terms of the OP Units and the Series A Preferred Units conform in all material respects to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to descriptions related thereto in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be . Except as disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Prospectus: (i) no OP Units or Series A Preferred Stock.”
Units are reserved for any purpose, (qii) The Common there are no outstanding securities convertible into or exchangeable for any OP Units or Series A Preferred Stock and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units, Series A Preferred Units or any other securities of the Operating Partnership. Any prior offers and sales of the OP Units and Series D A Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as Units described in the Registration Statement and the Prospectus, no optionshave been offered and sold in transactions exempt from the registration requirements of the Securities Act, warrants the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and blue sky laws. None of the OP Units or Series A Preferred Units were issued in violation of the preemptive or other similar rights to purchase, agreements or other obligations to issue, or rights to convert of any obligations into or exchange any securities for, units holder of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstandingPartnership.
(sp) Except as described in the Registration Statement 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, The shares of capital stock Common Stock initially issuable upon conversion of or ownership interests in the Company are outstanding.
(t) The Placement Shares to be sold by the Company Series A Preferred Stock have been duly authorized and, when issued and delivered against payment therefore upon conversion of the Series A Preferred Stock in accordance with the terms of this Agreementthe Articles Supplementary to the Company’s charter setting forth the terms of the Series A Preferred Stock, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares shares of Common Stock will not be subject to or in violation of any preemptive or similar rights. Upon payment The Board of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, Directors of the Company has duly and the requirements of the NYSE.
(u) The validly reserved such shares of Common Stock initially issuable for issuance upon conversion of the Series D A Preferred Stock.
(q) With respect to stock options, share awards (including restricted common stock and restricted stock units), stock appreciation rights, dividend equivalent rights, performance awards, annual incentive cash awards and/or other equity-based awards (the “Equity Incentive Awards”) granted pursuant to the stock-based compensation plans of the Company and its subsidiaries, including without limitation the Company’s 2020 Long Term Incentive Plan (the “Company Stock have been Plans”), (i) each Equity Incentive Award intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) so qualifies, (ii) each grant of an Equity Incentive Award was duly authorized andno later than the date on which the grant of such Equity Incentive Award was by its terms to be effective by all necessary corporate action, when issued upon conversion including, as applicable, approval by the board of directors of the Series D Preferred Stock Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Articles SupplementaryCompany Stock Plans, will be the Securities Act and all other applicable laws and regulatory rules or requirements, including the rules of the NYSE and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States applied on a consistent basis in the financial statements (including the related notes) of the Company and disclosed in filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Equity Incentive Awards prior to, or otherwise coordinating the grant of Equity Incentive Awards with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(r) All of the issued and outstanding units (“Subsidiary OP Units”) of NREF OP I, LP, NREF OP II, LP and NREF OP IV, LP (collectively, the “Subsidiary Partnerships”) have been duly authorized for issuance by the Subsidiary Partnerships and their general partner and validly issued, fully paid and nonassessable, . The terms of the Subsidiary OP Units conform in all material respects to the descriptions related thereto in the Registration Statement and the issuance Prospectus. Except as disclosed in the Registration Statement and the Prospectus: (i) no Subsidiary OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any Subsidiary OP Units and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for Subsidiary OP Units or any other securities of such shares the Subsidiary Partnerships. Any prior offers and sales of Common Stock will the Subsidiary OP Units described in the Registration Statement and the Prospectus, have been offered and sold in transactions exempt from the registration requirements of the Securities Act, the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and blue sky laws. None of the Subsidiary OP Units were issued in violation of the preemptive or other similar rights of any holder of the Subsidiary Partnerships.
(s) There are no legal or governmental proceedings pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against the Company, the Operating Partnership or their subsidiaries or to which the Company or its subsidiaries or any of their properties are subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement thereto) but are not be subject todescribed as required. Except as described in the Registration Statement and the Prospectus, there are no actions, suits, inquiries, proceedings or investigations by or before any court or governmental or other regula
Appears in 1 contract
Sources: Equity Distribution Agreement (NexPoint Real Estate Finance, Inc.)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby"1934 Act Regulations"), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein. The Company's ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption "Ratios of Earnings to Fixed Charges" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act and the 1933 Act Regulations and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i"Properties") or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (iia "Property Partnership") being herein (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the "Duke Group"), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a “Material Adverse Effect”).
whole; (jE) The neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been duly organized, is validly existing no material change in the short-term debt or long-term debt of the Duke Group as a limited whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in good standing under the laws Operating Partnership ("Units") and the issuance of Units in connection with the State acquisition of Delaware real or personal property, there has been no change in the full power and authority to own capital stock or leasein the partnership interests, as the case may be, its property and to operate its property and conduct its business as described in of the Registration Statement Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Prospectus Operating Partnership has been duly formed, and is duly qualified to transact business validly existing and is in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign limited partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a "Material Adverse Effect. All of ").
(xi) If the applicable Underwritten Securities are issued by the Company, and if the Prospectus contains the caption "Capitalization," the authorized, issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company as of the date specified therein is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the Company.
(xii) If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Prospectus contains the caption "Capitalization," the partner's equity of the Operating Partnership is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code § 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the "Services Partnership") and Duke Construction Limited Partnership (the "Construction Partnership"), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise. The Company that are “significant subsidiaries” is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and Duke Management, Inc. are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. Duke Business Centers Corporation, a wholly-owned subsidiary of Duke Realty Construction, Inc. is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is wholly owned by the Operating Partnership.
(mxiv) The Operating Partnership has Except for transactions described in the partnership power Prospectus and authority transactions in connection with dividend reinvestment plans, stock option and other employee benefit plans, a warrant exercisable for 1,444,486 shares of Common Stock to execute and deliver this Agreement and to perform AEW Capital Management, L.P. or its obligations hereunder and all limited partnership action required to be taken affiliates, a warrant exercisable for the due and proper authorization, execution and delivery by it 331,200 shares of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary Common Stock to the Codina Group or its affiliates, the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the 's Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized Shares and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as otherwise set forth in the Registration Statement and the Prospectus (except for subsequent issuancesbelow, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units. The Company are outstandingis required to purchase Duke Management, Inc.'s interest in the Services Partnership for 833,334 Units upon a change in control of the Company or a dissolution of the Operating Partnership.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the Company pursuant to this Agreement and the applicable Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementTerms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject topurchas
Appears in 1 contract
Sources: Underwriting Agreement (Duke Realty Limited Partnership/)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent to, and agree with, CF&Co that as of the date hereof, of this Agreement and as of each Representation Date (as defined in Section 7(n) below) on which a certificate is required to be delivered pursuant to Section 7(q), 7(n) of this Agreement and as of each Applicable Time (as defined in Section 20(a)) as the time of each sale of any Placement Shares pursuant to this Agreementcase may be:
(a) No order preventing or suspending The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as offering of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make Shares contemplated hereby. At the statements therein, in the light time of the circumstances under which they were made, not misleading; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness initial filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under of the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under of the Securities Act, Act and (D) as of at the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under of the Securities Act (Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405”)).
(c) 405 of the Securities Act. The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) 405 of the Securities Act, and the Securities Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) of the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(b) The Registration Statement became effective upon filing with under Rule 462(e) of the CommissionSecurities Act on May 29, 2009, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued by under the Commission, Securities Act and no proceeding proceedings for that purpose have been instituted or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated are pending or, to the knowledge of the Company and the Operating PartnershipCompany, threatened are contemplated by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretorequest on the part of the Commission for additional information has been complied with.
(c) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act and otherwise complied with the requirements of Rule 163 of the Securities Act, including without limitation the legending requirement.
(d) The Company has delivered to CF&Co one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as CF&Co has reasonably requested. The Prospectus delivered to CF&Co for use in connection with the offering of its applicable effective date Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to Agents CF&Co pursuant to Rule 430B(f)(2) and at each Settlement Dateof the Securities Act, as the case may be, the Registration Statement complied and will comply as to form in all material respects with the requirements of the Securities Act, and did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; . The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to CF&Co furnished to the Company in writing by CF&Co expressly for inclusion in any of the aforementioned documents.
(f) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date of hereof, and at each Representation Date, as the Prospectus and any amendment case may be, included or supplement thereto, will not contain any include an untrue statement of a material fact or omitted 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; provided. The preceding sentence does not apply to statements in or omissions from the Prospectus, howeveras amended or supplemented, that in reliance upon and in conformity with written information relating to CF&Co furnished to the Company and in writing by CF&Co expressly for inclusion in any of the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, aforementioned documents.
(g) Each document incorporated by reference in the Registration Statement and or the ProspectusProspectus heretofore filed, at the time when it was filed (or, if any amendment with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer respect to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any such document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each was filed, when such Issuer Free Writing Prospectus complied and will comply amendment was filed), conformed in all material respects with the Securities requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to the extent required therebyany such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(h) Each issuer free writing prospectus (as defined in Rule 433), as of its issue date and as of each Applicable Time (as defined in Section 20 below), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document incorporated by reference therein deemed to be a part thereof that has not been superseded or modified and, when taken together modified. The foregoing sentence does not apply to statements in or omissions from any issuer free writing prospectus based upon and in conformity with the Prospectus accompanying, or delivered prior written information furnished to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date by CF&Co specifically for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writinguse therein.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries stock of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by validly issued, are fully paid and nonassessable and have been issued in compliance with applicable federal and state securities laws. None of the Company and accepted for record with the Maryland State Department Company’s outstanding shares of Assessments and Taxation Common Stock or preferred stock (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions ”) were issued in violation of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan any preemptive rights, rights of Distribution” insofar as such statements summarize agreements, documents first refusal or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is other similar rights; except as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects is not a party to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no or bound by any outstanding options, warrants or other similar rights to purchasesubscribe for, agreements or other contractual obligations to issue, sell, transfer or rights to convert acquire, any obligations of its capital stock or any securities convertible into or exchange exchangeable for any securities for, units of partnership interest in such capital stock; the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be issued and sold by the Company hereunder have been duly authorized and, when issued and delivered against full payment therefore therefor in accordance with the terms of this Agreement, hereof will be validly issued, fully paid and non-assessable, nonassessable and the issuance of such Placement Shares will not be subject to or in violation free of any preemptive rights, rights of first refusal or other or similar rights. Upon payment ; the capital stock (including the Shares) of the purchase price Company conforms to the description thereof contained in the Prospectus; and issuance and the delivery of the Placement Shares to be issued and being sold by the Company in accordance herewith, against payment therefor pursuant to the purchasers thereof terms of this Agreement will receive good, pass valid and marketable title to such Placement Sharesthe Shares being sold by the Company, free and clear of all Liensany claim, encumbrance or defect in title, and without notice of any lien, claim or encumbrance. The certificates, if any, to be certificates used by the Company to evidence the Placement Shares will be Common Stock or the Preferred Stock are in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement valid and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEsufficient form.
(uj) The shares of Common Stock initially issuable upon conversion Immediately after the transactions contemplated by this Agreement, all of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, and outstanding Common Units (as defined below) will be validly issued, fully paid and nonassessable. Immediately after the transactions contemplated by this Agreement, none of the outstanding common units of limited partnership interest in the Operating Partnership (“Common Units”) or preferred units of limited partnership interest in the Operating Partnership (“Preferred Units”) has been or will be issued or is owned or held in violation of any preemptive right, right of first refusal or other similar right; and the outstanding Common Units and Preferred Units have been or will be offered, sold and issued by the Operating Partnership in compliance with applicable federal and state securities laws.
(k) Each of the Company and its subsidiaries is duly organized and validly existing in good standing under the laws of the state of its incorporation or organization with full corporate, partnership or entity power and authority, as the case may be, to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify has not had or will not have a material adverse effect on the condition (financial or other), business, properties, or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”). The Company is the sole general partner of the Operating Partnership, and the Company and MAC II of Delaware, L.P. (“MAC II”) collectively own a percentage interest in the Operating Partnership disclosed in the Prospectus. Except as disclosed in the Prospectus, the Company and MAC II own all of the outstanding Preferred Units. Except as described above, the Company or the Operating Partnership is the sole direct or indirect owner of all of the equity interests in each of the subsidiaries other than the Operating Partnership, Mid-America Multifamily Fund I, LLC and Mid-America Multifamily Fund II, LLC.
(l) The outstanding equity interests of each of the Company’s subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interests, liens, encumbrances, equities or claims. The Company does not have any subsidiaries and does not own a material interest in or control, directly or indirectly, any other corporation, partnership, joint venture (other than Mid-America Multifamily Fund II, LLC in which the Company owns a 33.33% ownership interest), association, trust or other business organization, except as set forth in Exhibit 21 to the Company’s most recent Annual Report on Form 10-K incorporated by reference into the Registration Statement. As used in this Agreement, subsidiaries shall mean direct and indirect subsidiaries of the Company.
(m) Except as described in the Prospectus, there is no action, suit, inquiry, proceeding or investigation by or before any court or governmental or other regulatory or administrative agency or commission pending or, to the best knowledge of the Company, threatened, against or involving the Company or its subsidiaries, which might individually or in the aggregate prevent or adversely affect the transactions contemplated by this Agreement or result in a Material Adverse Effect, nor to the Company’s knowledge, is there any basis for any such action, suit, inquiry, proceeding or investigation. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Prospectus or to be filed as an exhibit to the Registration Statement that are not described, filed or incorporated by reference in the Registration Statement and the Prospectus as required by the Securities Act. All such contracts to which the Company or any of its subsidiaries is a party have been duly authorized, executed and delivered by the Company or the applicable subsidiary, constitute valid and binding agreements of the Company or the applicable subsidiary and are enforceable against the Company or the applicable subsidiary in accordance with the terms thereof, except as enforceability thereof may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought. Neither the Company nor the applicable subsidiary has received notice or been made aware that any other party is in breach of or default to the Company or its subsidiaries under any of such contracts.
(n) Neither the Company nor any of its subsidiaries is (i) in violation of (A) its Organizational Documents, (B) to the Company’s knowledge any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of its subsidiaries, the violation of which would have a Material Adverse Effect or (C) any decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries; or (ii) in default in any material respect in the performance of any obligation, agreement or condition contained in (A) any bond, debenture, note or any other evidence of indebtedness or (B) any agreement, indenture, lease or other instrument (each of (A) and (B), an “Existing Instrument”) to which the Company or any of its subsidiaries is a party or by which any of their properties may be bound, which default would have a Material Adverse Effect; and, to the Company’s knowledge, there does not exist any state of facts that constitutes a default or an event of default on the part of the Company or any of its subsidiaries as defined in such documents or that, with notice or lapse of time or both, would constitute such a default or event of default which would have a Material Adverse Effect.
(o) The Company and the Operating Partnership have full legal right, power and authority to enter into and perform this Agreement and to consummate the transactions contemplated herein, including the issuance, sale and delivery of the Shares as provided herein and the Operating Partnership’s issuance of such shares the Common Units to the Company. The Company’s and the Operating Partnership’s execution and delivery of Common Stock will not this Agreement and the performance by the Company and the Operating Partnership of their obligations under this Agreement have been duly and validly authorized by the Company and the Operating Partnership and this Agreement has been duly executed and delivered by the Company and the Operating Partnership, and constitutes a valid and legally binding agreement of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except to the extent enforceability may be subject tolimited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting credi
Appears in 1 contract
Sources: Sales Agreement (Mid America Apartment Communities Inc)
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby"1934 Act Regulations"), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein. The Company's ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act, the 1933 Act Regulations and guidelines of the American Institute of Certified Public Accountants with respect to pro forma financial information and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i"Properties") or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (iia "Property Partnership") being herein (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the "Duke Group"), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a “Material Adverse Effect”).
whole; (jE) The neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been duly organized, is validly existing no material change in the short-term debt or long-term debt of the Duke Group as a limited whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in good standing under the laws Operating Partnership ("Units") and the issuance of Units in connection with the State acquisition of Delaware real or personal property, there has been no change in the full power and authority to own capital stock or leasein the partnership interests, as the case may be, its property and to operate its property and conduct its business as described in of the Registration Statement Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Prospectus Operating Partnership has been duly formed, and is duly qualified to transact business validly existing and is in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign limited partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a "Material Adverse Effect. All of ").
(xi) If the applicable Underwritten Securities are issued by the Company, and if the Prospectus contains the caption "Capitalization," the authorized, issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company as of the date specified therein is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any security holder of the Company.
(xii) If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Prospectus contains the caption "Capitalization," the partner's equity of the Operating Partnership is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code Section 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke-Weeks Realty Services Limited Partnership (the "Services Partnership") and Duke-Weeks Construction Limited Partnership (the "Construction Partnership"), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company that are “significant subsidiaries” Duke Group considered as a single enterprise. Duke Services, Inc. is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(wOperating Partnership and Duke Management, Inc. ("DMI") of Regulation S-X.
(l) The Company has are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. The Services Partnership is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is owned 4.04% by the Services Partnership, 91.16% by the Operating Partnership and 4.8% by DMI.
(mxiv) The Operating Partnership has Except for transactions described in the partnership power Prospectus and authority to execute transactions in connection with dividend reinvestment plans, stock option and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorizationother employee benefit plans, execution and delivery by it a Rights Agreement, dated as of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by July 23, 1998, between the Company and accepted for record with the Maryland State Department of Assessments and Taxation American Stock Transfer & Trust Company (the “SDAT”"Rights Agreement").
(o) The statements in , the Registration Statement and the Prospectus under the captions “Description of Common and Company's outstanding 7.375% Series D Convertible Cumulative Redeemable Preferred Stock,” “Certain Provisions , the Operating Partnership's 7.375% Series D Convertible Cumulative Redeemable Preferred Units, the Operating Partnership's Series H Preferred Units and warrants dated as of Maryland Law July 2, 1999 and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar registered as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement date hereof to Codina Group, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Prospectus (except for subsequent issuancesvarious other individuals, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, there are no optionsoutstanding rights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company are outstandingCompany, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered against payment therefore in accordance with by the terms of Company pursuant to this Agreement, will be validly issued, fully paid and non-assessable, Agreement and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon applicable Terms Agreement against payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toconsideration set for
Appears in 1 contract
Sources: Underwriting Agreement (Duke Weeks Realty Limited Partnership)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the and agree with each Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a An “well-known seasoned issuerautomatic shelf registration statement” (the “registration statement”) as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively called the “Rule 405Act”), on Form S-3 (File No. 333-214579) in respect of the Shares, including a form of prospectus, has been prepared and filed by the Company not earlier than three years prior to the date hereof, in conformity with the requirements of the Act, and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder (the “Rules and Regulations”).
. The registration statement contains, or incorporates by reference to documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (c) The Registration Statement is collectively, the “Exchange Act”), certain information concerning the offering and sale of the Preferred Stock, including the Shares, and contains or incorporates by reference additional information concerning the Company and its business; the Commission has not issued an “automatic shelf registration statement” order preventing or suspending the use of the Basic Prospectus (as defined in Rule 405below), the Prospectus Supplement (as defined below), the Prospectus (as defined below) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending or any Permitted Free Writing Prospectus (as defined below), or the effectiveness of the Registration Statement has been issued by the CommissionStatement, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated instituted or, to the knowledge of the Company and Company’s or the Operating Partnership’s knowledge, threatened by the Commission. The Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Agents, as well as any new registration statement, post-effective amendment or new automatic shelf registration statement as may have been filed pursuant to Sections 4(f) or (g) of this Agreement, including (1) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Agents, and (3) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of each Registration Statement, together with any amendments or supplements thereto (other than a prospectus supplement relating solely to an offering of securities other than the Shares), as of the date hereofof this Agreement. Except where the context otherwise requires, and any post-effective amendment thereto“Prospectus Supplement,” as used herein, as of its applicable effective date and at each deemed effective date means the final prospectus supplement, relating to the Shares, filed by the Company with respect to Agents the Commission pursuant to Rule 430B(f)(2424(b) and at each Settlement Date, complied and will comply in all material respects with under the Securities Act, and did not and will not contain any untrue statement of a material fact Act on or omit to state a material fact required to be stated therein or necessary in order to make before the statements therein not misleading; and as of second business day after the date of hereof (or such earlier time as may be required under the Prospectus and any amendment or supplement thereto, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinAct), in the light of the circumstances under which they were made, not misleading; provided, however, that form furnished by the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects connection with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated Shares. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoing, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Agents by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized Company for listing on the NYSE, subject to official notice of issuance and the Company is use in material compliance connection with the rules offering and sale of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice Shares which differs from the NYSE regarding Basic Prospectus, Prospectus Supplement or Prospectus, as the revocation of case may be (whether or not such listing revised basic prospectus, prospectus supplement or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are prospectus is required to be filed as exhibits by the Company pursuant to the Registration Statement other than those that are so filed.
(hRule 424(b) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”Act), the terms “Basic Prospectus,” “Prospectus Supplement” and (ii) the Company “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and leaseprospectus, as the case may be, its property from and after the time it is first provided to operate its property the Agents for such use. “Permitted Free Writing Prospectuses,” as used herein, means the documents listed on Schedule A attached hereto and conduct its business any other “issuer free writing prospectus” (as described defined in Rule 433 of the Act) that the Company and the Agents shall agree from time to time is a Permitted Free Writing Prospectus. Any reference herein to the registration statement, the Registration Statement and Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and is duly qualified include the documents, if any, incorporated by reference, or deemed to transact business and is in good standing be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires exhibits to such qualification, except Incorporated Documents. Any reference herein to the extent that terms “amend,” “amendment” or “supplement” with respect to the failure Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to be so qualified refer to and include the filing of any document under the Exchange Act on or be in good standing would not (i) have a material adverse effect on after the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects initial effective date of the CompanyRegistration Statement, or the date of the Basic Prospectus, the Operating Partnership and Prospectus Supplement, the Subsidiaries (as hereinafter defined), taken as a whole, Prospectus or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or leasePermitted Free Writing Prospectus, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure deemed to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effectincorporated therein by reference.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Equity Distribution Agreement (Global Net Lease, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities Placement Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities Placement Shares have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's ’s 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's ’s 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the 6.45% Series D Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series D Preferred Stock Stock”), on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives Agent in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectlySubsidiary, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of DistributionDistribution (Conflicts of Interest)” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(po) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, Act or the Securities Act or any rule or regulation promulgated thereunderAct). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(qp) The Common Stock and the Series D Preferred Stock conform conforms and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rq) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(sr) Except as described in the Registration Statement 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.
(ts) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and RestatementRestatement of the Company, as amended or supplemented through the date hereof (the “Charter”), and BylawsBylaws of the Company, as amended, of amended through the Company date hereof (the “Bylaws”) and the requirements of the NYSE.
(ut) The shares of Common Stock initially issuable upon conversion Company is the holder, directly or indirectly, of the Series D Preferred Stock OP Units of each class and series and in the respective percentages described in the Registration Statement and the Prospectus. Summit Hotel GP, LLC, a wholly owned subsidiary of the Company, is the sole general partner of the Operating Partnership. The OP Units to be issued by the Operating Partnership to the Company upon contribution of the net proceeds from the sale of the Placement Shares have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementaryand delivered against payment therefor, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock OP Units will not be subject toto or in violation of any preemptive or similar rights.
(u) Neither of the Company’s nor the Operating Partnership’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Sect
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and First Washington Realty Limited Partnership, a Maryland limited partnership (the "Operating Partnership"), jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)to, and as of agree with, the time of each sale of any Placement Shares pursuant to this AgreementUnderwriters that:
(a) No A registration statement on Form S-3 (File No. 333-24017) with respect to the Shares has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission. The Company is eligible to use Form S-3 for the registration of the Shares under the Act. Copies of such registration statement, including any amendments thereto, the prospectus and the exhibits, financial statements and schedules, as finally amended and revised, included or incorporated by reference therein, collectively herein referred to as the "Registration Statement," as well as copies of the preliminary prospectus supplement, if any, relating to the offering of the Shares, have heretofore been delivered by the Company to you. The Registration Statement has been declared effective by the Commission under the Act, and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. The prospectus constituting a part of the Registration Statement at the time the Registration Statement was declared effective by the Commission and the prospectus supplement relating to the offering of the Shares pursuant to Rule 415 of the Rules and Regulations (the "Prospectus Supplement"), including all documents incorporated by reference in the prospectus, as from time to time amended or supplemented pursuant to the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise, are collectively referred to herein as the "Prospectus." Each preliminary prospectus supplement related to the offering of the Shares, if any, is herein referred to as a "Preliminary Prospectus Supplement." Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Registration Statement or Prospectus, as the case may be, and, in the case of any reference herein to any Prospectus, also shall be deemed to include any documents incorporated by reference therein, and any supplements or amendments thereto filed with the Commission after the date of filing of the Prospectus under Rule 424(b) and prior to the termination of the offering of the Shares by the Underwriters.
(b) The Commission has not issued an order preventing or suspending the use of the any Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as proposed offering of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible Shares nor instituted proceedings for registration by the Company on such automatic shelf registration statementthat purpose. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company contains and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, Prospectus and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and amendments or supplements thereto will comply in contain all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact statements which are required to be stated therein or necessary in order by, and will conform, to make the statements therein not misleading; and as requirements of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 Act and the Operating Partnership make no representation Rules and warranty with respect to any Agent InformationRegulations. The documents incorporated, or to be incorporated, incorporated by reference in the Registration Statement and the Prospectus, at the time they were filed or will be filed with the Commission, complied conformed or will complyconform at the time of filing, in all material respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)Act, and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”)applicable, and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized rules and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (First Washington Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agent that as of Underwriters on the date hereof, as of each Representation on the Closing Date (as defined belowin Section 2 hereof) and on which a certificate is required to be delivered pursuant to each Option Closing Date (as defined in Section 7(q2 hereof), and as of the time of each sale of any Placement Shares pursuant to this Agreementif any, that:
(a) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commission, and the Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and the Preliminary Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Datehereof, did not, does not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Underwriter Information (as defined in Section 9(a5(a) hereof).
(b) The Pricing Disclosure Package at the Applicable Time did not, and as of the Closing Date and as of each Option Closing Date, as the case may be, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Underwriter Information.
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereofApplicable Time, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(ci) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities Shares have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date date, and at each deemed effective date with respect to Agents the Underwriters pursuant to Rule 430B(f)(2) and at each Settlement Date), complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (ii) as of the date of the Prospectus and any amendment or supplement theretothereto and as of the Closing Date and as of each Option Closing Date, as the case may be, the Prospectus, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Underwriter Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act, or the Securities Act, as applicable.
(de) Other than the Registration Statement Statement, the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Agents Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Schedule II annexed hereto, each electronic road show and any other written communications approved in writing in advance by the AgentRepresentatives. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Preliminary Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not , and as of the Closing Date and as of each Option Closing Date, as the case may be, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Underwriter Information.
(ef) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules Rule 164 and Rule 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus.
(fg) The Placement Prior to the Closing Date, the Company will have applied to have the Shares have been authorized for listing listed on the New York Stock Exchange (the “NYSE, subject to official notice of issuance and the ”). The Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, each of the Company's 9.25% Series A Cumulative Redeemable Preferred Stock’s common stock, $0.01 par value per share (the “Series A Preferred Common Stock”), the Company's ’s 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's ’s 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), ) and the Company’s 6.45% Series D Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series D Preferred Stock Stock”) on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(gh) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(hi) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Preliminary Prospectus, except as has been disclosed to the Representatives in writing.
(ij) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(jk) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(kl) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessablenonassessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 III hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(lm) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(mn) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(no) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D E Preferred Stock (the “Articles Supplementary”) have been duly authorized and and, on or prior to the Closing Date, will have been duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(op) The statements in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus under the captions “Description of the Series E Preferred Stock,” “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of DistributionUnderwriting” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(pq) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act or the Securities Act; provided, however, that any issuances pursuant to (ii), (iii) or (iv) have been disclosed to the Underwriters). The Series E Preferred Stock conforms and will conform as to legal matters to the description thereof contained in the Registration Statement, the Securities Act or any rule or regulation promulgated thereunder). Pricing Disclosure Package and the Prospectus under the caption “Description of the Series E Preferred Stock.” The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and Statement, the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement Pricing Disclosure Package and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement Statement, the Pricing 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement Statement, the Pricing 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)to, and as of agree with, the time of each sale of any Placement Shares pursuant to this AgreementUnderwriter that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (An “automatic shelf registration statement” as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act of 1933, as amended (“Rule 405Act”)).
) (cNo. 333-180446) The Registration Statement is an relating to the Offered Securities being sold by the Company, including a base prospectus, has been filed with the Securities and Exchange Commission (the “automatic shelf Commission”) under the Act and such registration statement (“registration statement” (as defined in Rule 405”) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending For purposes of this Agreement, “Effective Time” means the effectiveness date and time as of which the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by registration statement became effective upon filing with the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date “Effective Date” with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue registration statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of means the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent InformationEffective Time thereof. The documents incorporatedregistration statement, or to be incorporatedas amended at its Effective Time, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in pursuant to the light General Instructions of the circumstances under Form on which they were made, not misleading; provided, however, that it is filed and including all information (if any) deemed to be a part of the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) registration statement as of the eligibility determination date for purposes of Rules 164 and 433 its Effective Time pursuant to Rule 430B (“Rule 430B”) under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporatedAct, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse EffectRegistration Statement.” The base prospectus, together with the final prospectus supplement setting forth the final terms of the offering, sale and plan of distribution of the Offered Securities, as filed with the Commission pursuant to and in accordance with Rule 430B and Rule 424(b) (“Rule 424(b)”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of Act and as included in the State of Delaware has the full power and authority Registration Statement, including all material incorporated by reference in such prospectus, are hereinafter referred to own or lease, as the case may be, its property and “Prospectus.” The prospectus subject to operate its property and conduct its business as described completion in the form included in the Registration Statement and at the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) time of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws initial filing of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the such Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments Commission and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents prospectus is amended or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, supplemented pursuant to (i) this Agreement, (ii) a preliminary prospectus supplement filed with the Commission pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid Rule 424(b) and non-assessable, and the issuance of such Placement Shares will not be subject Rule 430B from time to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through time until the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toof
Appears in 1 contract
Sources: Underwriting Agreement (Corporate Office Properties Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to the Agent that Underwriter as of the date hereof, as of each Representation Date the Initial Sale Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this AgreementClosing Time and agree with the Underwriter, that:
(a) The Company and the transactions contemplated by this Agreement meet the requirements and comply with the conditions for the use of Form S-3 under the Securities Act. The Registration Statement meets, and the offering and sale of the Shares by the Company as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act. The Company has not received from the Commission any requests for additional or supplemental information with respect to the Registration Statement. No stop order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statement, (B) at any Preliminary Prospectus or the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 Prospectus or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding proceedings for that such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has have been initiated instituted or are pending or, to the knowledge of the Company and the Operating PartnershipCompany’s knowledge, are contemplated or threatened by the Commission. , and any request received by the Company on the part of the Commission for additional information with respect thereto has been complied with.
(b) The Preliminary Prospectus when filed and the Registration Statement as of each effective date and as of the date hereof complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Securities Act Regulations.
(c) The Registration Statement, as of its effective date and as of the date hereof, and any post-effective amendment theretodid not, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did does not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of 5:00 pm (Eastern time) on the date of this Agreement (the “Initial Sale Time”) the Disclosure Package did not, and the Prospectus and or any amendment or supplement theretothereto will not, will not as of the applicable filing date, and at the Closing Time, contain any 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; provided, however, that the Company and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporatedstatement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriter and furnished in writing by or on behalf of the Underwriter to be incorporated, by reference the Company expressly for use therein (that information being limited to that described in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements last sentence of the Exchange Actfirst paragraph of Section 9(b) hereof).
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus (other than Prospectus, if any, as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of its issue date and at all subsequent times through the completion of the Securities Act or Rule 134 under public offer and sale of the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the ProspectusStatement, including any document incorporated by reference therein that has not been superseded superceded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(e) The Company was not an “ineligible issuer” (as defined is eligible to use Free Writing Prospectuses in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with respect to the offering Commission in accordance with the requirements of the Placement Shares contemplated Securities Act and the Securities Act Regulations; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act Regulations or that was prepared by or on behalf of or used by the Registration Statement Company complies or will comply in all material respects with the requirements of the Securities Act and the ProspectusSecurities Act Regulations.
(f) Except for the Issuer Free Writing Prospectuses identified in Schedule I hereto, and any electronic road show relating to the public offering of shares contemplated herein, the Company has not prepared, used or referred to, and will not, without the prior consent of the Underwriter, prepare, use or refer to, any Free Writing Prospectus.
(g) The Placement Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriter for use in connection with the public offering of the Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(h) The Shares have been duly authorized for listing on and, when issued and duly delivered against payment therefor as contemplated by this Agreement, will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the NYSE, subject to official notice of issuance and sale of the Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, under the organizational documents of the Company or under any agreement to which the Company or any subsidiary is a party or otherwise.
(i) Upon the conversion of the Shares and the issuance, in material compliance accordance with the rules Articles Supplementary relating to the Shares, of common stock of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Common Stock”) thereunder, such Common Stock shall be will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim.
(j) As soon as practicable following the Closing Time, the Shares and the Common Stock issuable upon conversion thereof will have been approved for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject to official notice of issuance; the Company's 7.875% Series B Cumulative Redeemable Preferred StockCompany has taken all necessary actions to ensure that, $0.01 par value per share upon and at all times after the NYSE shall have approved the Shares and the Common Stock issuable upon conversion for listing, it will be in compliance with all applicable corporate governance requirements set forth in the NYSE’s listing standards that are then in effect and is taking such steps as are necessary to ensure that it will be in compliance with other applicable corporate governance requirements set forth in the NYSE’s listing standards not currently in effect upon the effectiveness of such requirements.
(k) This Agreement has been duly authorized, executed and delivered by the “Series B Preferred Stock”), Company and the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”)Operating Partnership, and the Series D Preferred Stock on the NYSE, constitutes a valid and there are no actions, suits or proceedings pending or, to the knowledge binding agreement of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(gl) To Except as otherwise disclosed in the knowledge Prospectus and Disclosure Package, since the date of the most recent financial statements incorporated by reference in the Disclosure Package: (A) there has not been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a material adverse effect on the assets, business, operations, earnings, properties, condition (financial or otherwise) or prospects of the Company, the Operating Partnership and their respective subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there are no contracts has not been any transaction that is material to the Company, the Operating Partnership and their respective subsidiaries considered as one enterprise entered into or documents of a character which are required agreed to be filed as exhibits entered into by the Company, the Operating Partnership or any of their subsidiaries, (C) there has not been any obligation, contingent or otherwise, directly or indirectly incurred by the Company, the Operating Partnership or any subsidiary that is material to the Registration Statement other than those that are so filedCompany, the Operating Partnership and their subsidiaries considered as one enterprise, and (D) except for regular quarterly dividends on the common stock, regular dividends on preferred stock and regular quarterly distributions on the limited partner interests in the Operating Partnership (“OP Units”), there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock or by the Operating Partnership on any of its partnership interests.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(im) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under the laws of the State of Maryland, Maryland and has the corporate power and authority to own own, lease and lease, as the case may be, operate its property properties and to operate its property and conduct its business as described in the Registration Statement and both the Prospectus and the Disclosure Package and to enter into and perform its obligations under this Agreement and, as the sole managing member of the sole general partner of the Operating Partnership, to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing as a foreign corporation in each other jurisdiction in which such qualification is required, whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to so qualify could not reasonably be so qualified or be expected to result in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(jn) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware and has the full partnership power and authority to own or lease, as the case may be, its property and to operate its property properties and to conduct its business as described in both the Registration Statement Prospectus and the Disclosure Package and to enter into and perform its obligations under this Agreement; and the Operating Partnership is duly qualified as a foreign partnership to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify could not reasonably be expected to result in a Material Adverse Effect. The Company is the sole managing member of the sole general partner of the Operating Partnership. The aggregate percentage interests of the Company and the limited partners in the Operating Partnership are as set forth in both the Prospectus and the Disclosure Package. The Agreement of Limited Partnership of the Operating Partnership has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable 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 or affecting creditors’ rights and general principles of equity and except as rights to indemnity and contribution thereunder may be limited by applicable law or policies underlying such law.
(o) Each subsidiary of the Company has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as described in both the Prospectus and the Disclosure Package and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which such qualification is required, whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to so qualify could not reasonably be so qualified or be expected to result in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of and outstanding capital stock, units of limited partnership interest and units of membership interest stock or other ownership interests of each Subsidiary of the Company or the Operating Partnership have subsidiary has been duly authorized, are authorized and validly issued, is (as applicable) fully paid and non-assessableassessable (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act) and is owned by the Company, have been issued directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, other than (i) as described in compliance both the Prospectus and the Disclosure Package and (ii) any security interest, mortgage, pledge, lien, encumbrance, claim or equity in connection with applicable securities laws indebtedness described in both the Prospectus and were not the Disclosure Package. None of the outstanding shares of capital stock or other ownership interests of any subsidiary was issued in violation of any the preemptive or similar rightsrights of any securityholder of such subsidiary. Except as disclosed in the Registration Statement and the Prospectus, the The Company does not own or the Operating Partnership, as the case may be, ownscontrol, directly or indirectly, all of the issued and outstanding shares of capital stockany corporation, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims association or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company entity that are is or will be a “significant subsidiariessubsidiary” of the Company (within the meaning of Rule 1-02(w) of Regulation S-X.
(lX) The Company has other than the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary entities listed on Exhibit 21.1 to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record Annual Report on Form 10-K filed with the Maryland State Department of Assessments and Taxation (Commission on March 15, 2016. For the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms purposes of this Agreement, will be validly issued, fully paid “subsidiary” means each direct and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment indirect subsidiary of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewithCompany, including, without limitation, the purchasers thereof will receive good, valid Operating Partnership and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEits subsidiaries.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Prime, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Agent that as of Closing Date and the date hereofAdditional Closing Date, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)the case may be, and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending the use The Company satisfies all of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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) requirements of the Securities Act (whether such amendment was by post-effective amendment, incorporated report for use of Form S-3 for the offering of Shares contemplated hereby and has prepared and filed pursuant to Section 13 or 15(d) of with the Exchange Act or form of prospectus), (C) at Commission the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is an “automatic shelf registration statement” on Form S-3 (as defined in Rule 405) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statementFile No. 333-251057). The Registration Statement became has been declared effective upon filing with by the Commission. No stop order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. .
(b) The Company, at the time of initial filing of the Registration Statement, as at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares, on the date hereofhereof and on the Closing Date or the Additional Closing Date, was not, is not and any post-effective amendment theretowill not be an “ineligible issuer” (as defined in Rule 405 under the Securities Act).
(c) The Registration Statement conformed in all material respects, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datedate, complied and will comply conform in all material respects with on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Securities Act. The most recent Preliminary Prospectus conformed in all material respects, and the Prospectus will conform in all material respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and on the Closing Date and any Additional Closing Date, if applicable, to the applicable requirements of the Securities Act.
(d) The Registration Statement did not and will not not, as of its effective date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(e) The Prospectus will not, as of its date and on the date of the Prospectus Closing Date and any amendment or supplement theretoAdditional Closing Date, will not if applicable, contain 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, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to Representative by or on behalf of any Agent Information. The Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(f) Any documents incorporated, or to be incorporated, incorporated by reference in into the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 (the “Incorporated Documents”) heretofore filed, at the time when they were filed (or, if any amendment with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer respect to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any such document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each was filed, when such Issuer Free Writing Prospectus complied and will comply amendment was filed), conformed in all material respects with the Securities requirements of the Exchange Act and the rules and regulations thereunder.
(to the extent required thereby), and g) The Time of Sale Information did not, does as of the Time of Sale, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not and will not include any information misleading; provided that conflicted, conflicts no representation or will conflict with the warranty is made as to information contained in or omitted from the Registration Statement Time of Sale Information in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(h) Each Issuer Free Writing Prospectus (including, without limitation, any “road show” (as defined in Rule 433 under the Prospectus, including any document incorporated by reference therein Securities Act) that has not been superseded or modified andis a free writing prospectus under Rule 433 under the Securities Act), when taken considered together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing ProspectusTime of Sale Information at the Time of Sale, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Each Issuer Free Writing Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business conformed or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in applicable requirements of the Registration Statement Securities Act on the date of first use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters pursuant to the descriptions thereof contained in Securities Act. The Company has not made any offer relating to the Registration Statement and Shares that would constitute an Issuer Free Writing Prospectus without the Prospectus under prior written consent of the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 Representative. The Company are outstanding.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore has retained in accordance with the terms Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act. The Company has taken all actions necessary so that any “road show” (as defined in Rule 433 under the Securities Act) in connection with the offering of the Shares will not be required to be filed pursuant to the Securities Act.
(j) From the time of the filing of the Registration Statement with the Commission through the date of this Agreement, will be validly issued, fully paid the Company has been and non-assessable, and the issuance of such Placement Shares will not be subject to or is an “emerging growth company” as defined in violation of any preemptive or similar rights. Upon payment Section 2(a) of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSESecurities Act.
(uk) The shares of Common Stock initially issuable upon conversion Company (i) has not engaged in any Testing-the-Waters Communications, (ii) has not authorized anyone to engage in Testing-the-Waters Communications and (iii) has not distributed or approved for distribution any Written Testing-the-Waters Communications. As used herein, “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessableSecurities Act, and “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a “written communication” within the issuance meaning of such shares of Common Stock will not be subject toRule 405 under the Securities Act.
Appears in 1 contract
Sources: Underwriting Agreement (Alpine Income Property Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, hereby represent and warrant to the Agent that Underwriters, as of the date hereofof this Agreement, as of the Closing Time and as of each Representation Date Option Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(qif any), and as agree with each of the time of each sale of any Placement Shares pursuant to this AgreementUnderwriters, as follows:
(a) No The Registration Statement has become effective under the Securities Act and no stop order preventing or suspending the use effectiveness of the Prospectus Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied with any request on the part of the Commission for additional information.
(b) The Registration Statement as of its effective date and as of the date hereof complied and, as it may be further amended after the date hereof, will comply, and the Preliminary Prospectus, the Prospectus and any further amendments or supplements thereto, each when filed with the Commission, complied or will comply, in all material respects with the requirements of the Securities Act and the Securities Act Regulations.
(c) The Registration Statement did not, as of its effective date and or as of the date of any amendment or supplement and on any Settlement Datethereto, did not, does not and will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementProspectus will not, as of the date hereofapplicable filing date, at the Closing Time and any post-effective amendment theretoon each Option Closing Time, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Dateif any, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain any 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; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporatedDisclosure Package as of [·] [a.m.]/[p.m.], or to be incorporatedNew York City time, by reference in on [·], 2021 (the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d“Initial Sale Time”) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any 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; providedas of its issue date or date of first use and at all subsequent times through the Initial Sale Time, howevereach Issuer Free Writing Prospectus, when considered together with 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 representations and warranties made in this Section 3(c) shall not apply to any statement in or omitted from the Registration Statement, the Prospectus or the Disclosure Package in reliance upon and in conformity with the information furnished to the Company in writing by or on behalf of the Underwriters through the Representatives expressly for use therein (it being understood and agreed that the Company and only such information furnished by any Underwriter consists of the Operating Partnership make no representation and warranty information described as such in the last sentence of Section 9(b)).
(d) Each Issuer Free Writing Prospectus does not conflict with respect to any Agent Informationthe information contained in the Registration Statement.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act; and any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with respect to the offering Commission in accordance with the requirements of the Placement Shares contemplated by the Registration Statement Securities Act and the ProspectusSecurities Act Regulations.
(f) The Placement Shares have been authorized Except for listing on the NYSEIssuer Free Writing Prospectuses identified in Schedule II hereto, subject and any electronic road show relating to official notice of issuance and the Company is in material compliance with the rules public offering of the NYSEShares, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received prepared, used or referred to, and will not, without the prior consent of the Representatives, prepare, use or refer to, any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSEFree Writing Prospectus.
(g) To The Preliminary Prospectus, the knowledge of Prospectus and any Issuer Free Writing Prospectuses (to the Company, there are no contracts or documents of a character which are extent any such Issuer Free Writing Prospectus was required to be filed as exhibits with the Commission) delivered to the Registration Statement other than those that are so filed.Representatives for use in connection with the public offering of the Shares contemplated herein have been or will be identical to the versions of such documents transmitted to the Commission for filing via the Electronic Data Gathering Analysis and Retrieval system (“E▇▇▇▇”), except to the extent permitted by Regulation S-T.
(h) To From the knowledge time of initial confidential submission of a draft registration statement relating to the Shares with the Commission through the date hereof, the Company has been and is an “emerging growth company” as defined in Section 2(a)(19) of the Company and the Operating Partnership, there are no affiliations or associations between Securities Act (i) any member of the Financial Industry Regulatory Authority, Inc. (an “FINRAEGC”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws None of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct Company nor any of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not affiliates has (i) have a material adverse effect on engaged in any Testing the assetsWaters Communication (as defined below) other than through, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Companyas disclosed to, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, Representatives or (ii) prevent authorized anyone other than the Representatives to engage in Testing the Waters Communications; the Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing the Waters Communications. “Testing the Waters Communication” means any oral or materially interfere written communication with consummation potential investors undertaken in reliance on Section 5(d) of the transactions contemplated hereby (Securities Act. Except through, or as disclosed to, the occurrence of any such effectRepresentatives, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws none of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct Company nor any of its business or its ownership or leasing of property requires such qualification, except to affiliates has distributed any Written Testing the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” Waters Communications (as defined in Rule 1-02(w) of Regulation S-X) of below). “Written Testing the Company other than Waters Communications” means any Testing the Operating Partnership (each Waters Communication that is a “Subsidiarywritten communication” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) 405 under the Securities Act; no individual Written Testing the Waters Communication, when considered together with the Disclosure Package, included any untrue statement of Regulation S-X.
(l) The Company has a material fact or omitted to state any material fact necessary in order to make the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for statements therein, in the due and proper authorization, execution and delivery by it of this Agreement and consummation by it light of the transactions contemplated hereby have been duly and validly takencircumstances under which they were made, not misleading.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent to, and agree with, CF&Co that as of the date hereof, of this Agreement and as of each Representation Date Applicable Time (as defined below) on which a certificate is required to be delivered pursuant to in Section 7(q20(b), and as of the time of each sale of any Placement Shares pursuant to this Agreement:):
(a) No The Registration Statement (i) has been prepared by the Company in conformity with the requirements of Form S-3, as set forth in the General Instructions thereto, of the Securities Act; (ii) has been filed with the Commission under the Securities Act; and (iii) has become effective under the Securities Act.
(b) The Commission has not issued any order preventing or suspending the use of the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been issued instituted or, to the Company’s knowledge, threatened by the Commission.
(c) The Company was not at the time of initial filing of the Registration Statement and at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Shares, is not on the date hereof and will not be on the applicable Settlement Date an “ineligible issuer” (as defined in Rule 405). The Company has been, and is, since the Prospectustime of the initial effectiveness of the Registration Statement eligible to use Form S-3 for the offering of the Placement Shares.
(d) At the respective times that the Registration Statement became effective and at each deemed effective date with respect to CF&Co pursuant to Rule 430B(f)(2) under the Securities Act, as the Registration Statement complied and will comply in all material respects to the requirements of its date the Securities Act. The Prospectus will comply, in all material respects when filed with the Commission pursuant to Rule 424(b) and as of each Applicable Time, to the date requirements of the Securities Act. The documents incorporated by reference in the Prospectus conformed, and any further documents so incorporated will conform, in each case, when filed with the Commission, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(e) At the respective times that the Registration Statement and any amendment or supplement thereto became effective, and on any Settlement Dateat each deemed effective date with respect to CF&Co pursuant to Rule 430B(f)(2) of the Securities Act, the Registration Statement did not, does not and will not not, contain any 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; provided that no representation or warranty is made as to information contained in order or omitted from the Registration Statement in reliance upon and in conformity with written information relating to CF&Co furnished to the Company in writing by CF&Co expressly for inclusion therein, it being understood that the only such information is that described in Section 9(e) to this Agreement (the “CF&Co Information”).
(f) The Prospectus will not, as of its date, and of each Applicable Time, 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, in the light of the circumstances under which they were made, not misleading; provided, however, the Company and the Operating Partnership make provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and warranty in conformity with respect to any Agent Information (as defined in Section 9(a) hereof)the CF&Co Information.
(Ag) At the original effectiveness of the Registration StatementEach “issuer free writing prospectus” (a “Free Writing Prospectus”) (including, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentwithout limitation, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and road show that is a “well-known seasoned issuer” (as defined in free writing prospectus under Rule 405 under the Securities Act (“Rule 405”433)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereofApplicable Time, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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, provided that the Company and the Operating Partnership make no representation or warranty is made as to information contained in or omitted from the Free Writing Prospectus in reliance upon and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed conformity with the Commission, complied CF&Co Information.
(h) Any Free Writing Prospectus conformed or will comply, conform in all material respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all prospectus delivery and any filing requirements applicable to such Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Shares that would constitute a Free Writing Prospectus without the revocation prior written consent of such listing or otherwise regarding CF&Co. The Company has retained in accordance with the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are Securities Act all Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingSecurities Act.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws Each of the State of Maryland, has the corporate power Company and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing “significant subsidiaries,” as such term is defined in Rule 1-02 of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not Regulation S-K (i) have a material adverse effect on the assets, business, condition (financial or otherwise“significant subsidiaries”), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership and in good standing as a corporation or other business entity under the laws of the State its jurisdiction of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus organization and is duly qualified to transact do business and is in good standing as a foreign limited partnership corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its business or its ownership or leasing of property businesses requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
material adverse change in the business, properties, operations, earnings, shareholders’ equity, condition (kfinancial or otherwise) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) or prospects of the Company other than and of the Operating Partnership subsidiaries taken, as a whole (each any such change a “Subsidiary” and collectively the “SubsidiariesMaterial Adverse Change”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws ); each of the jurisdiction of Company and its organization, significant subsidiaries has the full all power and authority necessary to own or lease, as the case may be, hold its property properties and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction businesses in which the conduct of its business it is engaged. The Company does not own or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, ownscontrol, directly or indirectly, all of the issued and outstanding shares of capital stockany corporation, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims association or other defects of any kind entity other than (collectivelyi) the subsidiaries listed on Schedule 5 attached hereto and (ii) such other entities omitted from Schedule 5 which, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of when such omitted entities are considered in the Company that are aggregate as a single subsidiary, would not constitute a “significant subsidiariessubsidiary” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(lj) The Company has an authorized capitalization as set forth in the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder Prospectus, and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly issued and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it outstanding shares of this Agreement and the consummation by it capital stock of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Company have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed thereinvalidly issued, are accuratefully paid and non-assessable, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement Prospectus and were issued in compliance with federal and state securities laws and not in violation of any preemptive right, resale right, right of first refusal or similar right. Except for the Prospectus under issuance of OP Units by the caption “Description Operating Partnership, the issuance of Common and Series A Cumulative Redeemable Preferred Stock.”
(q) The Common , Series B Cumulative Redeemable Preferred Stock, Series C Cumulative Term Preferred Stock, Series D Cumulative Redeemable Preferred Stock and senior common stock by the Series D Preferred Stock Company or other securities of the Company or its subsidiaries not required to be disclosed pursuant to Form 8-K or as described in the Prospectus, there are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company or capital stock or other equity interest of any of its subsidiaries. All of the issued and outstanding units of limited partner interest in the Operating Partnership (the “OP Units”) have been duly authorized and validly issued, and have been offered and sold in compliance with all applicable laws (including, without limitation, federal or state securities laws). The terms of the OP Units conform and will conform as to legal matters in all material respects to the descriptions thereof contained in or incorporated by reference in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Prospectus. Except as described disclosed in the Registration Statement and the Prospectus, (i) no OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any OP Units, and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in Partnership. All of the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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, issued shares of capital stock or other equity interest of or ownership interests in each wholly-owned subsidiary of the Company other than Operating Partnership have been duly authorized and validly issued, are outstandingfully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as would not have a Material Adverse Change.
(tk) The Placement Shares to be issued and sold by the Company through CF&Co hereunder have been duly authorized and, when issued upon payment and delivered against payment therefore delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, will conform to the description thereof contained in the Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of first refusal and similar rights.
(l) The aggregate percentage interests of the Company and the issuance limited partners in the Operating Partnership are as set forth in the Prospectus as of the dates specified therein.
(m) The Preferred Stock is registered pursuant to Section 12(b) of the Exchange Act and listed on the Exchange, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Preferred Stock under the Exchange Act or delisting the Preferred Stock from the Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such Placement Shares will not registration or listing.
(n) Each of the Company and the Operating Partnership has all requisite power and authority to execute, deliver and perform their respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company and the Operating Partnership.
(o) This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company and the Operating Partnership, enforceable in accordance with its terms, except as rights to indemnification hereunder may be subject limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or in violation affecting the rights and remedies of any preemptive creditors or similar rights. Upon payment by general equitable principles.
(p) The execution, delivery and performance of this Agreement by the Company and the Operating Partnership, the consummation of the purchase price transactions contemplated hereby and issuance and delivery the application of the proceeds from the sale of the Placement Shares as described under “Use of Proceeds” in the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; (ii) result in any violation of the provisions of the articles of restatement or bylaws (or similar organizational documents) of the Company or the Operating Partnership; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets, except, in the case of clauses (i) and (iii), as would not, individually or in the aggregate, be issued reasonably expected to have a Material Adverse Change.
(q) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Company or the Operating Partnership or any of their properties or assets is required for the execution, delivery and sold performance of this Agreement by the Company in accordance herewithand the Operating Partnership, the purchasers thereof will receive good, valid consummation of the transactions contemplated hereby and marketable title to such Placement Shares, free and clear the application of all Liens. The certificates, if any, to be used to evidence the proceeds from the sale of the Placement Shares will as described under “Use of Proceeds” in the Prospectus, except for the registration of the Shares under the Securities Act and listing of the Shares on the Exchange, such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in substantially connection with the form sale of the Shares through CF&Co and as would not reasonably be expected to have a Material Adverse Change.
(r) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.
(s) Except as an exhibit tootherwise disclosed in the Registration Statement and the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus: (i) there has been no Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change; (ii) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise; and (iii) except for regular quarterly distributions in amounts per share or per unit that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company or the Operating Partnership, except for dividends paid to the Company or other subsidiaries, on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
(t) The historical financial statements (including the related notes and supporting schedules) included or incorporated by reference in, in the Registration Statement and will be in proper Prospectus comply as to form and will comply in all material respects with all applicable legal requirements, the requirements of Regulation S-X under the Articles Securities Act and present fairly the financial condition, results of Amendment operations and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, cash flows of the Company entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with GAAP (as defined in Section 20(c)) applied on a consistent basis throughout the periods involved. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto in all material respects. The Company’s ratios of earnings to fixed charges and preferred stock dividends incorporated by reference in the Registration Statement and the requirements Prospectus have been calculated in material compliance with Item 503(d) of Regulation S-K under the NYSESecurities Act.
(u) The shares of Common Stock initially issuable upon conversion of pro forma financial statements incorporated by reference in the Series D Preferred Stock have been duly authorized andProspectus, when issued upon conversion of if any, include assumptions that provide a reasonable basis for presenting the Series D Preferred Stock in accordance with significant effects directly attributable to the terms of transactions and events described therein, the Articles Supplementary, will be validly issued, fully paid and nonassessablerelated pro forma adjustments give appropriate effect to those assumptions, and the issuance pro forma adjustments reflect the proper application of such shares those adjustments to the historical financial statement amounts in the pro forma financial statements incorporated by reference in the Prospectus. Any pro forma financial statements incorporated by reference in the Prospectus comply as to form in all material respects with the applicable requirements of Common Stock will not be subject toRegulation S-X under the Securities
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, severally represent and warrant to, and agree with each Manager and each Forward Purchaser that:
(a) The Company satisfies the conditions for the use of Form S-3 in connection with the offer and sale of the Shares as contemplated hereby; the Registration Statement meets, and the offer and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Registration Statement became effective upon filing pursuant to Rule 462(e) under the Act; the Commission has not issued an order preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted or, to the Agent that Company’s knowledge, threatened in writing by the Commission; the Registration Statement complied in all material respects when it became effective, complies in all material respects as of the date hereofhereof and, as amended or supplemented, will comply in all material respects at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) under the Act with the requirements of each Representation Date (as defined below) on which the Act, and the Registration Statement did not and will not, at such times, contain an untrue statement of a certificate is material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to Section 7(q)make the statements therein not misleading; the Prospectus and any amendments or supplements thereto complied or will comply in all material respects at the time the Prospectus and any amendments or supplements thereto were or will be filed with the Commission, complies in all material respects as of the date hereof (if filed with the Commission on or prior to the date hereof) and will comply in all material respects as of the time of each sale of any Placement the Shares pursuant to this Agreement:
Agreement (aeach, a “Time of Sale”) No order preventing or suspending and at each Settlement Date (as defined below) with the use requirements of the Prospectus has been issued by the CommissionAct, and the Prospectus did not and will not, at such times, 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; any Permitted Free Writing Prospectus, as of its date of issue and as of each Time of Sale and Settlement Date and at all times during which a prospectus is required by the date Act to be delivered (whether physically or through compliance with Rule 153 or Rule 172 under the Act, or in lieu thereof, a notice referred to in Rule 173(a) under the Act) in connection with any sale of any amendment or supplement and on any Settlement DateShares, did not or will not, does at such times, 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; provided, however, that the Company makes no representation or warranty with respect to any statement contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and will in conformity with information furnished in writing by or on behalf of the Managers or the Forward Purchasers expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may be; it being understood that the only information that shall be deemed furnished in writing by or on behalf of the Managers and Forward Purchasers shall be the Managers and Forward Purchasers Information as defined in Section 7(b); and each Incorporated Document, at the time such document was filed with the Commission, complied, in all material respects, with the requirements of the Exchange Act and did not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness time of filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereofTime of Sale and at each such time this representation is repeated or deemed to be made, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”Act)).
(c) . The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) 405 under the Act, and the Securities offer and sale of the Shares have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with Company has not received from the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and Commission any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents notice pursuant to Rule 430B(f)(2401(g)(2) and at each Settlement Dateunder the Act objecting to the use of the automatic shelf registration statement form.
(c) Prior to the execution of this Agreement, complied and will comply the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in all material respects connection with the Securities offer or sale of the Shares; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and did not and will not contain any untrue the registration statement of a material fact or omit relating to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as offer of the date of the Prospectus and any amendment or supplement theretoShares contemplated hereby, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time as initially filed with the Commission, complied includes a prospectus that, other than by reason of Rule 433 or will complyRule 431 under the Act, in all respects to satisfies the requirements of Section 10 of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, Act in all material respects; the Company (including its agents has treated and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and agrees that it will not prepare, use, authorize, approve or refer to any Issuer treat each Permitted Free Writing Prospectus (other than as referred to an “issuer free writing prospectus,” as defined in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 433 under the Securities Act or (ii) each electronic road show Act, and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus has complied and will comply in all material respects with the Securities Act (requirements of Rule 433 applicable to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Permitted Free Writing Prospectus, did not including timely filing with the Commission where required, legending and will not contain 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 misleadingrecord keeping; provided, however, that and the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the ProspectusStatement.
(fd) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits financial statements included or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed incorporated by reference in the Registration Statement and the Prospectus, together with the Company or the Operating Partnershiprelated schedules and notes, present fairly in all material respects, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries financial position of the Company that are “significant subsidiaries” and its consolidated subsidiaries as of the dates indicated and their results of operations and cash flows for the periods specified; all such financial statements and the supporting schedules, if any, relating to the Company within and its consolidated subsidiaries as of the meaning of Rule 1-02(wdates indicated have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) of Regulation S-X.
(l) The Company has applied on a consistent basis throughout the corporate power periods presented and authority to execute and deliver this Agreement and to perform its obligations hereunder and present fairly in all corporate action material respects in accordance with GAAP the information required to be taken for stated therein; the due and proper authorization, execution and delivery selected financial data included or incorporated by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements reference in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings present fairly in all material respects.
(p) The authorized respects the information shown therein and outstanding capitalization have been compiled on a basis consistent with that of the audited, or unaudited, as applicable, financial statements of the Company is as set forth and its consolidated subsidiaries included or incorporated by reference therein; any unaudited pro forma condensed consolidated financial statements of the Company and the related notes thereto included or incorporated by reference in the Registration Statement and the Prospectus present fairly in all material respects the information shown therein, have been prepared in all material respects in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein give appropriate effect to the transactions and circumstances referred to therein; no financial statements (except historical or pro forma) or supporting schedules are required to be included or incorporated by reference in the Registration Statement or the Prospectus under the Act or the Exchange Act other than those that are so included or incorporated by reference therein; and all disclosures contained in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G under the Exchange Act, and Item 10 of Regulation S-K under the Act, in each case to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus fairly presents the information called for subsequent issuancesin all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(e) This Agreement has been duly authorized, if anyexecuted and delivered by the Company and the Operating Partnership. The form of Confirmation has been duly authorized by the Company. When executed and delivered by the Company, pursuant each Confirmation (including the relevant Supplemental Confirmation to the applicable Master Confirmation) (i) this Agreementwill be, at the time of execution and delivery thereof, duly authorized, executed and delivered by the Company and, (ii) pursuant to reservationsassuming the due authorization, agreementsexecution and delivery thereof by the applicable Forward Purchaser, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement will constitute a valid and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock binding agreement of the Company, enforceable against the Company conforms in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and will conform other similar laws relating to or affecting creditors’ rights generally, by general equitable principles (regardless of whether such enforceability is considered in all material respects to the description thereof contained a proceeding in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(qequity or at law) The Common Stock and the Series D Preferred Stock conform and will conform and, as to legal matters to the descriptions thereof contained in the Registration Statement rights of indemnification and the Prospectus under the caption “Description contribution, by federal or state securities law or principles of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstandingpublic policy.
(s) Except as described in the Registration Statement 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.
(tf) The Placement Primary Shares to be sold by the Company have been duly and validly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreementtherefor as provided herein, will be duly and validly issued, issued and fully paid and non-assessableassessable and will conform in all material respects to all statements related to the shares of Common Stock contained in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus; the Confirmation Shares have been duly and validly authorized and reserved for issuance to each Forward Purchaser, or its affiliate, pursuant to the issuance applicable Confirmation; when such Confirmation Shares are issued and delivered by the Company to such Forward Purchaser against payment of any consideration required to be paid by such Forward Purchaser pursuant to the terms of such Placement Confirmation, such Confirmation Shares will not be duly and validly issued and fully paid and non-assessable and will conform in all material respects to all statements related to the shares of Common Stock contained in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus; no holder of any Primary Shares or any Confirmation Shares will be subject to or in violation personal liability by reason of being such a holder; and any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be certificate used to evidence the Placement any Primary Shares or any Confirmation Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement due and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the articles of amendment and restatement of the Company, as amended (the “Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylawsthe second amended and restated bylaws of the Company, as amendedamended (the “Bylaws”), of the Company and the requirements of the New York Stock Exchange (the “NYSE”).
(ug) The shares of Common Stock initially issuable upon conversion of There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Series D Preferred Stock Registration Statement or included in the offering contemplated by this Agreement or any Confirmation, except for such rights as have been duly authorized waived.
(h) None of the Company, the Operating Partnership or any of their respective subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Registration Statement or the Prospectus any loss or interference with its business or any properties described in the Registration Statement or the Prospectus or in any document incorporated by reference therein (the “Properties”) from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, in each case, that could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, business prospects, financial condition or results of operations of the Company, the Operating Partnership and their respective subsidiaries considered as one enterprise (a “Material Adverse Effect”), otherwise than as set forth or contemplated in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus; and, when issued upon conversion since the respective dates as of which information is given in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, there has not been any change in the capital stock of the Series D Preferred Stock Company or any OP Units (as defined below) or long term debt of the Company, the Operating Partnership or any of their subsidiaries or any change that could reasonably be expected to have, individually or in accordance the aggregate, a Material Adverse Effect, otherwise than as set forth or contemplated in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus.
(i) The Operating Partnership and its subsidiaries have good and marketable title in fee simple to, or leasehold or subleasehold interests in, as disclosed in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, as the case may be, the Properties and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus or such as do not materially affect the value of such property and do not interfere with the terms use made and proposed to be made of such property by the Operating Partnership and its subsidiaries; except as disclosed in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, none of the Articles SupplementaryCompany, will the Operating Partnership or any of their respective subsidiaries owns any real property material to the business of the Operating Partnership and its subsidiaries, considered as one enterprise, other than the Properties; each of the leases and subleases relating to a Property, if any, material to the business of the Operating Partnership and its subsidiaries, considered as one enterprise, are in full force and effect, with such exceptions as do not materially interfere with the use made or proposed to be validly issued, fully paid and nonassessablemade of such Property by the Operating Partnership or any of its subsidiaries, and (i) no material default or event of default has occurred and is continuing under any lease or sublease with respect to such Property and none of the issuance Company, the Operating Partnership or any of their respective subsidiaries has received any notice of any event which, whether with or without the passage of time or the giving of notice, or both, would constitute a default under such shares of Common Stock will not be subject tolease or sublease and (i
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that you, as of the date hereof, and to you and each other Underwriter named in the applicable Terms Agreement, as of each Representation Date the date thereof, as of the Closing Time (as defined below) on which and, if applicable, as of each Date of Delivery (as defined below) (in each case, a certificate is required to be delivered pursuant to Section 7(q"Representation Date"), and as of the time of each sale of any Placement Shares pursuant to this Agreementfollows:
(a1) The Company and the Operating Partnership meet the requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statement, the Prospectus and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the 1933 Act and no proceeding for that purpose has been instituted or is pending or, to the knowledge of the Company, is contemplated or threatened by the Commission or by the state securities authority of any jurisdiction, and any request on the part of the Commission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company or the Operating Partnership, threatened by the CommissionCommission or by the state securities authority of any jurisdiction.
(2) The Registration Statement, at the time it became effective, complied, and the Prospectus, as of its date Registration Statement and as the Prospectus at each Representation Date will comply in all material respects with the requirements of the date of any amendment or supplement 1933 Act and on any Settlement Datethe 1933 Act Regulations. The Registration Statement, at the time the Registration Statement became effective, did not, does and as of each Representation Date, 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. At the date of the Prospectus, at the Closing Time and at each Representation Date, the Prospectus and any amendments and supplements thereto (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company for use in connection with an offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement became effective, in which case at the time it is first provided to you for such use) did not and will not contain any 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; provided, however. If the Company elects to rely upon Rule 434 of the 1933 Act Regulations, the Company will comply with the requirements of Rule 434. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Operating Partnership make no representation Registration Statement or the Prospectus made in reliance upon and warranty in conformity with respect information furnished to the Company in writing by any Agent Information (as defined Underwriter through you expressly for use in Section 9(athe Registration Statement or the Prospectus. If a Rule 462(b) hereof)Registration Statement is required in connection with the offering and sale of the Underwritten Securities, the Company has complied or will comply with the requirements of Rule 111 of the 1933 Act Regulations relating to the payment of filing fees therefor.
(A3) At the original effectiveness Each preliminary prospectus, preliminary prospectus supplement and Prospectus Supplement filed as part of the Registration StatementStatement as originally filed or as part of any amendment thereto, (B) or filed pursuant to Rule 424 under the 1933 Act, complied, when so filed, in all material respects with the 1933 Act Regulations and, if applicable, each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of Underwritten Securities will, at the time of such delivery, be identical to the most recent amendment thereto for electronically transmitted copies thereof filed with the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed Commission pursuant to Section 13 EDGA▇, ▇▇cept to the extent permitted by Regulation S-T.
(4) The documents incorporated or 15(d) of deemed to be incorporated by reference in the Exchange Act or form of prospectus)Prospectus, (C) at the time the Company they were or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing hereafter are filed with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Actrequirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations") and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and as of each Representation Date or during the period specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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.
(5) Each of Price Waterhouse LLP and Ernst & Young LLP, howeverthe accounting firms that certified the financial statements and supporting schedules included in, that or incorporated by reference into, the Registration Statement and the Prospectus is an independent public accountant as required by the 1933 Act and the 1933 Act Regulations.
(6) The consolidated financial statements of the Company and the Operating Partnership make no representation incorporated by reference into the Registration Statement and warranty the Prospectus, together with respect to the related schedules and notes, as well as those financial statements, schedules and notes of any Agent Informationother entity included therein, present fairly the financial position of the Company, the Operating Partnership and their consolidated subsidiaries, or such other entities, as the case may be, at the respective dates indicated and the statement of operations, stockholders' equity, partners' equity and cash flows of the Company, the Operating Partnership and their consolidated subsidiaries, or such other entities, as the case may be, for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. The documents incorporatedsupporting schedules, if any, included in, or incorporated by reference into, the Registration Statement and the Prospectus present fairly the information required to be incorporatedstated therein. The selected financial data and the summary financial information included in, or incorporated by reference into, the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus. The Company's and the Operating Partnership's ratios of earnings to fixed charges and preferred stock dividends (actual and, if any, pro forma) included in the Prospectus under the captions "Ratios of Earnings to Fixed Charges and Preferred Stock Dividends" and in Exhibit 12.1 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. In addition, any pro forma financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of Rule 11-02 of Regulation S-X of the Commission, and the assumptions used in the preparation thereof are, in the opinion of the Company, reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein and have been properly applied to the historical amounts in the compilation of such statements. Other than the historical financial statements (and schedules) included therein, no other historical or pro forma financial statements (or schedules) are required by the 1933 Act or the 1933 Act Regulations to be included in the Registration Statement.
(7) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, at except as otherwise stated therein, (A) there has been no material adverse change in the time filed with condition, financial or otherwise, or in the Commissionearnings, complied assets, business affairs or will comply, in all respects to the requirements business prospects of the Exchange Act.
(d) Other than the Registration Statement and the ProspectusCompany, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make and their Subsidiaries considered as one enterprise (a "Material Adverse Effect"), whether or not arising in the ordinary course of business; (B) no representation and warranty casualty loss or condemnation or other adverse event with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes interests held directly or indirectly in any of Rules 164 the real properties owned, directly or indirectly, by the Company, the Operating Partnership or their Subsidiaries (the "Properties") has occurred that is material to the Company, the Operating Partnership and 433 under their Subsidiaries considered as one enterprise; (C) there have been no transactions entered into by the Securities Act Company, the Operating Partnership or any Subsidiary, other than those arising in the ordinary course of business, which are material with respect to the offering Company, the Operating Partnership and their Subsidiaries considered as one enterprise or that would result, upon consummation, in any material inaccuracy in the representations contained in Section 1(a)(6) above; (D) neither the Company, the Operating Partnership nor any Subsidiary has incurred any material obligation or liability, direct, contingent or otherwise; and (E) there has been no material change in the short-term debt or long-term debt of the Placement Shares contemplated by Company or the Registration Statement and the ProspectusOperating Partnership.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) 8) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under the laws of the State of Maryland, has the Georgia Business Corporation Code with corporate power and authority to own own, lease and lease, as the case may be, its property and to operate its property and properties, to conduct its business as described in the Registration Statement Prospectus and to enter into and perform its obligations under this Agreement, the applicable Terms Agreement, any Deposit Agreement, the Delayed Delivery Contracts (as defined herein), if any and the other agreements to which it is a party. The Company is duly qualified or registered as a foreign corporation to transact business in the States of ________________ and each other jurisdiction in which such qualification or registration is required, whether by reason of the ownership, leasing or management of property or the conduct of business except where the failure to so qualify or register would not have a Material Adverse Effect.
(9) Post GP Holdings, Inc. has been duly organized and is validly existing as a corporation in good standing under the Georgia Business Corporation Code with corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement, the applicable Terms Agreement, any Deposit Agreement, the Delayed Delivery Contracts, if any and the other agreements to which it is a party. Post GP Holdings, Inc. is duly qualified or registered as a foreign corporation to transact business and is in good standing in the States of Florida, North Carolina, Tennessee and Texas and the Commonwealth of Virginia and each other jurisdiction in which such qualification or registration is required, whether by reason of the ownership, leasing or management of property or the conduct of business except where the failure to so qualify or register would not have a Material Adverse Effect. All of the issued and outstanding shares of capital stock of Post GP Holdings, Inc. have been duly authorized and validly issued and fully paid.
(10) Post LP Holdings, Inc. is a corporation duly formed and is validly existing and in good standing under the laws of the State of Georgia. Post LP Holdings, Inc. has the power and authority to own, lease and operate its properties and conduct the business in which it is engaged and, to our knowledge, such corporation is duly qualified as a foreign corporation in each jurisdiction the jurisdictions set forth in which the conduct of its business or its ownership or leasing of property requires such qualification, except an exhibit to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects opinion. All of the Companyissued and outstanding shares of capital stock of Post LP Holdings, the Operating Partnership Inc. have been duly authorized and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)validly issued and fully paid.
(j11) The Operating Partnership has been duly organized, formed and is validly existing as a limited partnership in good standing under the laws of Georgia Revised Uniform Limited Partnership Act (the State of Delaware has the full "Georgia Act") with partnership power and authority to own or leaseown, as lease and operate its properties, to conduct the case may be, its property business in which it is engaged and to enter into and perform its obligations under this Agreement, the Terms Agreement and the other agreements to which it is a party. The Operating Partnership is duly qualified or registered as a foreign partnership and is in good standing in the States of Florida, North Carolina, Tennessee and Texas and the Commonwealth of Virginia and each other jurisdiction in which such qualification or registration is required, whether by reason of the ownership, leasing or management of property or the conduct of business, except where the failure to so qualify or register would not have a Material Adverse Effect.
(12) Each of the Subsidiaries has been duly formed and is validly existing and in good standing under the laws of its jurisdiction of organization with partnership or corporate power and authority to conduct the business in which it is engaged and to own, lease and operate its property and conduct its business properties as described in the Registration Statement and Prospectus. Each of the Prospectus and Subsidiaries is duly qualified as a foreign partnership, corporation or other organization to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationproperty, the management of properties by others or the conduct of business except to the extent that where the failure to be so qualified qualify or be in good standing register would not, individually or in the aggregate, not have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l13) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuancesissuances thereof, if any, pursuant to (i) contemplated under this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) Prospectus or pursuant to the exercise, redemption, or exchange exercise of convertible securities or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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, Such shares of capital stock of or ownership interests in the Company are outstanding.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when and validly issued by the Company and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, are fully paid and non-assessable, and the issuance none of such Placement Shares will not be subject to or shares of capital stock were issued in violation of any preemptive or other similar rights. Upon payment rights arising by operation of law, under the charter and by-laws of the purchase price and issuance and delivery Company or under any agreement to which the Company, the Operating Partnership or any of their subsidiaries is a party, or otherwise.
(14) The capitalization of the Placement Shares to be Operating Partnership is as set forth in the Prospectus and all of the outstanding partnership interests in the Operating Partnership have been duly authorized and validly issued and sold the capital contributions with respect thereto have been made in full; and the partnership interests owned, directly or indirectly, by the Company are owned in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, percentage amount set forth in the Prospectus free and clear of all Liensany security interest, mortgage, pledge, lien, encumbrance, claim or equity. The certificatesCompany, if anydirectly or indirectly, to be used to evidence is the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements sole general partner of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEOperating Partnership.
(u15) The All of the issued and outstanding shares of Common Stock initially issuable upon conversion capital stock and partnership interests, as the case may be, of the Series D Preferred Stock each Subsidiary have been duly authorized and, when validly issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, and fully paid and nonassessableare owned by the Company, the Operating Partnership, another Subsidiary, and/or certain affiliated entities as described in the Registration Statement, in each case free and the issuance clear of such shares of Common Stock will not be subject toany security interest, mortgage, pledge, lien,
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent to, and agree with, Ladenburg that as of the date hereof, of this Agreement and as of each Representation Date Applicable Time (as defined below) on which a certificate is required to be delivered pursuant to in Section 7(q20(b), and as of the time of each sale of any Placement Shares pursuant to this Agreement:):
(a) No The Registration Statement has (i) been prepared by the Company in conformity with the requirements of Form S-3, as set forth in the General Instructions thereto, of the Securities Act; (ii) been filed with the Commission under the Securities Act; and (iii) become effective under the Securities Act.
(b) The Commission has not issued any order preventing or suspending the use of the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been issued instituted or, to the Company’s knowledge, threatened by the Commission.
(c) The Company was not at the time of initial filing of the Registration Statement and at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Shares, is not on the date hereof and will not be on the applicable Settlement Date an “ineligible issuer” (as defined in Rule 405). The Company has been, and is, since the Prospectustime of the initial effectiveness of the Registration Statement eligible to use Form S-3 for the offering of the Placement Shares.
(d) At the respective times that the Registration Statement became effective and at each deemed effective date with respect to Ladenburg pursuant to Rule 430B(f)(2) under the Securities Act, as the Registration Statement complied and will comply in all material respects to the requirements of its date the Securities Act. The Prospectus will comply, in all material respects when filed with the Commission pursuant to Rule 424(b) and as of each Applicable Time, to the date requirements of the Securities Act. The documents incorporated by reference in the Prospectus conformed, and any further documents so incorporated will conform, in each case, when filed with the Commission, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(e) At the respective times that the Registration Statement and any amendment or supplement thereto became effective, and on any Settlement Dateat each deemed effective date with respect to Ladenburg pursuant to Rule 430B(f)(2) of the Securities Act, the Registration Statement did not, does not and will not not, contain any 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; provided that no representation or warranty is made as to information contained in order or omitted from the Registration Statement in reliance upon and in conformity with written information relating to Ladenburg furnished to the Company in writing by Ladenburg expressly for inclusion therein, it being understood that the only such information is that described in Section 9(e) to this Agreement (the “Ladenburg Information”).
(f) The Prospectus will not, as of its date, and of each Applicable Time, 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, in the light of the circumstances under which they were made, not misleading; provided, however, the Company and the Operating Partnership make provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and warranty in conformity with respect to any Agent Information (as defined in Section 9(a) hereof)the Ladenburg Information.
(Ag) At the original effectiveness of the Registration StatementEach “issuer free writing prospectus” (a “Free Writing Prospectus”) (including, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentwithout limitation, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and road show that is a “well-known seasoned issuer” (as defined in free writing prospectus under Rule 405 under the Securities Act (“Rule 405”433)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereofApplicable Time, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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, provided that the Company and the Operating Partnership make no representation or warranty is made as to information contained in or omitted from the Free Writing Prospectus in reliance upon and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed conformity with the Commission, complied Ladenburg Information.
(h) Any Free Writing Prospectus conformed or will comply, conform in all material respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all prospectus delivery and any filing requirements applicable to such Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Shares that would constitute a Free Writing Prospectus without the revocation prior written consent of such listing or otherwise regarding Ladenburg. The Company has retained in accordance with the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are Securities Act all Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingSecurities Act.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws Each of the State of Maryland, has the corporate power Company and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing “significant subsidiaries,” as such term is defined in Rule 1-02 of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not Regulation S-K (i) have a material adverse effect on the assets, business, condition (financial or otherwise“significant subsidiaries”), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership and in good standing as a corporation or other business entity under the laws of the State its jurisdiction of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus organization and is duly qualified to transact do business and is in good standing as a foreign limited partnership corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its business or its ownership or leasing of property businesses requires such qualification, except to the extent that where the failure to be so qualified or be in good standing would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
material adverse change in the business, properties, operations, earnings, shareholders’ equity, condition (kfinancial or otherwise) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) or prospects of the Company other than and of the Operating Partnership subsidiaries taken, as a whole (each any such change a “Subsidiary” and collectively the “SubsidiariesMaterial Adverse Change”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws ); each of the jurisdiction of Company and its organization, significant subsidiaries has the full all power and authority necessary to own or lease, as the case may be, hold its property properties and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction businesses in which the conduct of its business it is engaged. The Company does not own or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, ownscontrol, directly or indirectly, all of the issued and outstanding shares of capital stockany corporation, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims association or other defects of any kind entity other than (collectivelyi) the subsidiaries listed on Schedule 5 attached hereto and (ii) such other entities omitted from Schedule 5 which, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of when such omitted entities are considered in the Company that are aggregate as a single subsidiary, would not constitute a “significant subsidiariessubsidiary” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(lj) The Company has an authorized capitalization as set forth in the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder Prospectus, and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly issued and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it outstanding shares of this Agreement and the consummation by it capital stock of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Company have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed thereinvalidly issued, are accuratefully paid and non-assessable, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement Prospectus and were issued in compliance with federal and state securities laws and not in violation of any preemptive right, resale right, right of first refusal or similar right. Except for the Prospectus under issuance of OP Units by the caption Operating Partnership or other securities of the Company or its subsidiaries not required to be disclosed pursuant to Form 8-K or as described in the Prospectus, there are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company or capital stock or other equity interest of any of its subsidiaries. All of the issued and outstanding units of limited partner interest in the Operating Partnership (the “Description OP Units”) have been duly authorized and validly issued, and have been offered and sold in compliance with all applicable laws (including, without limitation, federal or state securities laws). The terms of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock OP Units conform and will conform as to legal matters in all material respects to the descriptions thereof contained in or incorporated by reference in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Prospectus. Except as described disclosed in the Registration Statement and the Prospectus, (i) no OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any OP Units, and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in Partnership. All of the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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, issued shares of capital stock or other equity interest of or ownership interests in each wholly-owned subsidiary of the Company other than Operating Partnership have been duly authorized and validly issued, are outstandingfully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as would not have a Material Adverse Change.
(tk) The Placement Shares to be issued and sold by the Company through Ladenburg hereunder have been duly authorized and, when issued upon payment and delivered against payment therefore delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, will conform to the description thereof contained in the Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of first refusal and similar rights.
(l) The aggregate percentage interests of the Company and the issuance limited partners in the Operating Partnership are as set forth in the Prospectus as of the dates specified therein.
(m) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and are listed on the Exchange, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such Placement Shares will not registration or listing.
(n) Each of the Company and the Operating Partnership has all requisite power and authority to execute, deliver and perform their respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company and the Operating Partnership.
(o) This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company and the Operating Partnership, enforceable in accordance with its terms, except as rights to indemnification hereunder may be subject limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or in violation affecting the rights and remedies of any preemptive creditors or similar rights. Upon payment by general equitable principles.
(p) The execution, delivery and performance of this Agreement by the Company and the Operating Partnership, the consummation of the purchase price transactions contemplated hereby and issuance and delivery the application of the proceeds from the sale of the Placement Shares as described under “Use of Proceeds” in the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; (ii) result in any violation of the provisions of the articles of incorporation or bylaws (or similar organizational documents) of the Company or the Operating Partnership; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets, except, in the case of clauses (i) and (iii), as would not, individually or in the aggregate, be issued reasonably expected to have a Material Adverse Change.
(q) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Company or the Operating Partnership or any of their properties or assets is required for the execution, delivery and sold performance of this Agreement by the Company in accordance herewithand the Operating Partnership, the purchasers thereof will receive good, valid consummation of the transactions contemplated hereby and marketable title to such Placement Shares, free and clear the application of all Liens. The certificates, if any, to be used to evidence the proceeds from the sale of the Placement Shares will as described under “Use of Proceeds” in the Prospectus, except for the registration of the Shares under the Securities Act and listing of the Shares on the Exchange, such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in substantially connection with the form sale of the Shares through Ladenburg and as would not reasonably be expected to have a Material Adverse Change.
(r) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.
(s) Except as an exhibit tootherwise disclosed in the Registration Statement and the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus: (i) there has been no Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change; (ii) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise; and (iii) except for regular quarterly distributions in amounts per share or per unit that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company or the Operating Partnership, except for dividends paid to the Company or other subsidiaries, on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
(t) The historical financial statements (including the related notes and supporting schedules) included or incorporated by reference in, in the Registration Statement and will be in proper Prospectus comply as to form and will comply in all material respects with all applicable legal requirements, the requirements of Regulation S-X under the Articles Securities Act and present fairly in all material respects the financial condition, results of Amendment operations and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, cash flows of the Company entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with GAAP (as defined in Section 20(c)) applied on a consistent basis throughout the periods involved. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto in all material respects. The Company’s ratios of earnings to fixed charges and preferred stock dividends incorporated by reference in the Registration Statement and the requirements Prospectus have been calculated in material compliance with Item 503(d) of Regulation S-K under the NYSESecurities Act.
(u) The shares of Common Stock initially issuable upon conversion of pro forma financial statements incorporated by reference in the Series D Preferred Stock have been duly authorized andProspectus, when issued upon conversion of if any, include assumptions that provide a reasonable basis for presenting the Series D Preferred Stock in accordance with significant effects directly attributable to the terms of transactions and events described therein, the Articles Supplementary, will be validly issued, fully paid and nonassessablerelated pro forma adjustments give appropriate effect to those assumptions, and the issuance pro forma adjustments reflect the proper application of such shares those adjustments to the historical financial statement amounts in the pro forma financial statements incorporated by reference in the Prospectus. The pro forma financial statements incorporated by reference in the Prospectus comply as to form in all material respects with the applicable requirements of Common Stock will not be subject toRegulation S-X under the Securities Act.
(v) PricewaterhouseCoopers LLP (the “Accountant”), who has audited certain financial statements of the Company and its consolidated subsidiaries, whose report is incorporated by
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to the Agent that as of the date hereofwarrant, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement this Agreement and on any Settlement as of the Common Stock Closing Date, did notthat:
(i) The execution and delivery by the Company of this Agreement, does not the issuance and will not contain 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 sale of the circumstances under which they were made, not misleading; provided, however, June Shares to be sold by the Company and the compliance by the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness all of the Registration Statement, (B) at the time provisions of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was this Agreement and all other transactions herein contemplated by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing issuance of the June Shares at the Common StockStock Closing Date, the Company's 9.25% Series A Cumulative Redeemable Preferred Stockdo not and will not: (A) conflict with, $0.01 par value per share or result in any breach of, or constitute a default under nor constitute any event which (the “Series A Preferred Stock”)with notice, the Company's 7.875% Series B Cumulative Redeemable Preferred Stocklapse of time, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge both) would constitute a breach of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between default under (i) any member provisions of the Financial Industry Regulatory Authoritycharter (including, Inc. (“FINRA”)without limitation, and (iithe articles supplementary) or bylaws or other organizational documents of the Company or any of the Company’s officersSignificant Subsidiary, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent any provision of any license, lease, indenture, mortgage, deed of trust, loan, credit, operating agreement, property management agreement or materially interfere with consummation other agreement or instrument to which any of them is a party or by which any of them or their respective properties or assets may be bound or affected, (iii) any law or regulation binding upon or applicable to the Company or any Significant Subsidiary or any of their respective properties or assets or (iv) any decree, judgment or order applicable to the Company or any Significant Subsidiary; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of the transactions contemplated hereby (the occurrence of Company or any such effectSignificant Subsidiary, prevention, interference or result except in each case described in the foregoing clauses (iA)(ii) or through (iiiv) being herein referred to and (B) of this sentence for such conflicts, breaches, defaults and violations as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have reasonably be expected to result in a Material Adverse Effect.
(kii) Each “significant subsidiary” This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership.
(as defined in Rule 1-02(wiii) Assuming due authorization, execution and delivery of Regulation S-X) this Agreement by the Investor, this Agreement is a legally valid and binding obligation of the Company other than and the Operating Partnership (Partnership, enforceable against each a “Subsidiary” of them in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and collectively the “Subsidiaries”) has been duly organizedby general equitable principles, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to indemnification and contribution provisions may be so qualified limited by U.S. federal or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable state securities laws and were not issued public policy considerations in violation of respect thereof.
(iv) No consent, approval, authorization or order of, or qualification with, any preemptive governmental body or similar rights. Except as disclosed in agency is required for the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned performance by the Company of its obligations under this Agreement, except such as may be required by the securities or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries Blue Sky laws of the Company that are “significant subsidiaries” various states in connection with the offer and sale of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power June Shares and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it approval of the transactions contemplated hereby have been duly and validly takenNew York Stock Exchange for listing of the Common Stock.
(mv) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement June Shares to be sold by the Company have been duly authorized and, when issued and duly delivered against payment therefore in accordance with the terms of therefor as contemplated by this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificatesany pledge, if anylien, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit toencumbrance, security interest or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessableother claim, and the issuance and sale of such shares the June Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, under the organizational documents of the Company or under any agreement to which the Company or any Subsidiary is a party or otherwise.
(vi) Subject to 1.2(f), each representation contained in Article II of the Purchase Agreement is true and correct as of the date hereof and as of the Common Stock will not be subject toClosing Date as though made as of the date hereof and as of the Common Stock Closing Date and contained in this Section 1.2(b).
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, hereby represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Agent that as of Closing Date and the date hereofAdditional Closing Date, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q)the case may be, and as of the time of each sale of any Placement Shares pursuant to this Agreementthat:
(a) No order preventing or suspending The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the Prospectus has been issued by offering of Shares contemplated hereby. At the Commission, and the Prospectus, as time of its date and as initial filing of the Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Common Stock, on the date of any amendment or supplement hereof and on any Settlement the Closing Date or the Additional Closing Date, did the Company was not, does is not and will not be an “ineligible issuer” (as defined in Rule 405 under the Securities Act).
(b) The Registration Statement and the Prospectus conformed, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects on the date hereof and on the Closing Date or the Additional Closing Date, as applicable, to the requirements of the Securities Act. The Preliminary Prospectus conformed, and the Prospectus to be filed with the Commission pursuant to Rule 424(b) under the Securities Act will conform in all material respects to the requirements of the Securities Act.
(c) The Registration Statement does not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(d) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statementsuch document was filed, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether when such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectusfiled), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply conformed in all material respects with the Securities Actrequirements of the Exchange Act and the rules and regulations thereunder, and did not any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and will not contain the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(e) The Prospectus will not, as of its date and on the date of Closing Date or the Prospectus and any amendment or supplement theretoAdditional Closing Date, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(f) The Time of Sale Information does not, and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, will not at the time filed with the Commission, complied or will comply, in all respects to the requirements of sale of the Exchange Act.
(d) Other than the Registration Statement and the ProspectusShares, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that no representation or warranty is made as to information contained in or omitted from the Time of Sale Information in reliance upon and in conformity with written information furnished to the Company and through the Operating Partnership make no representation and warranty with respect to Representatives by or on behalf of any Agent InformationUnderwriter specifically for inclusion therein, which information is specified in Section 15 hereof.
(eg) The Company was not an Each Issuer Free Writing Prospectus (including, without limitation, any “ineligible issuerroad show” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act Act) that is a free writing prospectus under Rule 433 under the Securities Act), when considered together with respect to the offering Time of Sale Information at the time of sale of the Placement Shares contemplated by Shares, did 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 Registration Statement and statements therein, in light of the Prospectuscircumstances under which they were made, not misleading.
(fh) The Placement Shares have been authorized for listing Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the NYSE, subject to official notice date of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplatedfirst use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not received made any notice from offer relating to the NYSE regarding Stock that would constitute an Issuer Free Writing Prospectus without the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge prior written consent of the Company, there are no contracts or documents of a character which are Representatives. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed as exhibits pursuant to the Registration Statement other than those Securities Act. The Company has taken all actions necessary so that are so filed.
(h) To any road show in connection with the knowledge offering of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed Stock will not be required to be filed pursuant to the Representatives in writingSecurities Act.
(i) The capitalization of the Company has as of September 30, 2018 is as set forth in the Registration Statement, the Time of Sale Information and the Prospectus. All the outstanding shares of capital stock of the Company have been, and as of the Closing Date and the Additional Closing Date, as the case may be, will be, duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights, except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus; except as described in the Time of Sale Information and the Prospectus, the Company is not a party to or bound by any outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its capital stock or any securities convertible into or exchangeable for any of such capital stock; the Shares to be issued and sold to the Underwriters by the Company hereunder have been duly incorporatedauthorized and, when issued and delivered to the Underwriters against full payment therefor in accordance with the terms hereof will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; the capital stock of the Company conforms to the description thereof in the Registration Statement, the Time of Sale Information and the Prospectus (or any amendment or supplement thereto).
(j) Each of the Company, the Operating Partnership and their subsidiaries is duly formed or organized and validly existing as a corporation corporation, limited liability company, limited partnership or other organization in good standing under the laws of the State jurisdiction of Marylandits incorporation, has the formation or organization with full corporate or organizational power and authority to own own, lease and lease, as the case may be, operate its property properties (“Properties”) and to operate its property and conduct its business as presently conducted and as described in the Registration Statement Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to transact conduct its business and is in good standing as a foreign corporation in each jurisdiction in which or place where the nature of its properties or the conduct of its business or its ownership or leasing of property requires such registration or qualification, except to the extent that where the failure to so register or qualify would not, individually or in the aggregate, reasonably be so qualified or be in good standing would not (i) expected to have a material adverse effect on the assets, business, condition (financial or otherwise), earningsbusiness, properties, managementassets, net worth, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined)their subsidiaries, taken as a whole, or whole (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder hereunder, and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have has been duly and validly taken.
(nl) The Articles Supplementary Shares to be purchased by the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Underwriters pursuant to this Agreement have been duly authorized for issuance, sale and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized delivery and, when issued and delivered by the Company pursuant to this Agreement against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementaryconsideration set forth herein, will be validly issued, fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance of such shares of Common Stock Shares will not be subject to any preemptive, co-sale right, registration right, right of first refusal or similar rights.
(m) All of the issued and outstanding units of the Operating Partnership (“OP Units”) have been duly authorized for issuance by the Operating Partnership and its general partner and validly issued. The terms of the OP Units conform in all material respects to the descriptions related thereto in the Registration Statement, the Time of Sale Information and the Prospectus. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus: (i) no OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any OP Units and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other securities of the Operating Partnership. Any prior offers and sales of the OP Units described in the Registration Statement, the Time of Sale Information and the Prospectus, have been offered and sold in transactions exempt from the registration requirements of the Securities Act, the applicable rules and regulations of the Commission thereunder and applicable state securities, real estate syndication and blue sky laws. None of the OP Units were issued in violation of the preemptive or other similar rights of any holder of the Operating Partnership.
(n) The Company and the Operating Partnership only have the subsidiaries set forth in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2017, which is incorporated by reference into the Registration Statement, except as modified by Schedule IV hereto.
(o) With respect to stock options, share awards (including restricted common stock and restricted stock units), stock appreciation rights, dividend equivalent rights, performance awards, annual incentive cash awards and/or other equity-based awards (the “Equity Incentive Awards”) granted pursuant to the stock-based compensation plans of the Company and its subsidiaries, including without limitation the Company’s 2016 Long Term Incentive Plan (the “Company Stock Plans”), (i) each Equity Incentive Award intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of an Equity Incentive Award was duly authorized no later than the date on which the grant of such Equity Incentive Award was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Company Stock Plans, the Securities Act and all other applicable laws and regulatory rules or requirements, including the rules of the NYSE and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States applied on a consistent basis in the financial statements (including the related notes) of the Company and disclosed in filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Equity Incentive Awards prior to, or otherwise coordinating the grant of Equity Incentive Awards with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(p) There are no legal or governmental proceedings pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against the Company, the Operating Partnership or their subsidiaries or to which the Company or its subsidiaries or any of their properties are subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement thereto) but are not described as required. Except as described in the Registration Statement, the Time of Sale Information and Prospectus, there are no actions, suits, inquiries, proceedings or investigations by or before any court or governmental or other regulatory or administrative agency or commission pending or, to the best knowledge of the Company and the Operating Partnership, threatened, against or involving the Company, the Operating Partnership or their subsidiaries, which might individually or in the aggregate reasonably be expected to have a Material Adverse Effect or prevent or adversely affect the transactions contemplated by this Agreement, nor to the knowledge of the Company and the Operating Partnership, is there any basis for any such action, suit, inquiry, proceeding or investigation. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Time of Sale Information or the Prospectus (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement that are not described, filed or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus as required by the Securities Act. All such contracts to which the Company, the Operating Partnership or any of their subsidiaries is a party have been duly authorized, executed and delivered by the Company, the Operating Partnership or the applicable subsidiary, constitute valid and binding agreements of the Company, the Operating Partnership or the applicable subsidiary and are enforceable against the Company, the Operating Partnership or the applicable subsidiary in accordance with the terms thereof, except as enforceability thereof may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought. None of the Company, the Operating Partnership or the applicable subsidiary has received notice or been made aware that any other party is in breach of or default to the Company, the Operating Partnership or the applicable subsidiary under any of such contracts.
(q) None of the Company, the Operating Partnership or any of their subsidiaries is (i) in violation of (A) its articles of incorporation or bylaws, or other organizational documents, (B) any federal, state or foreign law, ordinance, administrative or governmental rule or regulation applicable to the Company, the Operating Partnership or any of their subsidiaries, or (C) any decree of any federal, state or foreign court or governmental agency or body having jurisdiction over the Company, the Operating Partnership or any of their subsidiaries, except, in the case of (B) and (C), for violations that would not, indiv
Appears in 1 contract
Sources: Underwriting Agreement (NexPoint Residential Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership jointly and severally, severally represent and warrant to the Agent to, and agree with, Manager that as of the date hereof, of this Agreement and as of each Representation Date (as defined in Section 7(n) below) on which a certificate is required to be delivered pursuant to Section 7(q)7(n) of this Agreement, as of each Settlement Date and as of each Applicable Time (as defined in Section 20(a)) as the time of each sale of any Placement Shares pursuant to this Agreementcase may be:
(a) No order preventing or suspending The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as offering of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make Shares contemplated hereby. At the statements therein, in the light time of the circumstances under which they were made, not misleading; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness initial filing 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under of the Securities Act) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under of the Securities Act, Act and (D) as of at the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under of the Securities Act (Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405”)).
(c) 405 of the Securities Act. The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) 405 of the Securities Act, and the Securities Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) of the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(b) The Registration Statement became effective upon filing with under Rule 462(e) of the CommissionSecurities Act on May 29, 2009, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued by under the Commission, Securities Act and no proceeding proceedings for that purpose have been instituted or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated are pending or, to the knowledge of the Company and the Operating PartnershipCompany, threatened are contemplated by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment theretorequest on the part of the Commission for additional information has been complied with.
(c) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act and otherwise complied with the requirements of Rule 163 of the Securities Act, including without limitation the legending requirement.
(d) The Company has delivered to Manager one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Manager has reasonably requested. The Prospectus delivered to Manager for use in connection with the offering of its applicable effective date Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to Agents Manager pursuant to Rule 430B(f)(2) and at each Settlement Dateof the Securities Act, as the case may be, the Registration Statement complied and will comply as to form in all material respects with the requirements of the Securities Act, and did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; . The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to Manager, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”), or ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. (“▇▇▇▇▇▇▇ ▇▇▇▇▇”, together with ▇▇▇▇▇▇▇ ▇▇▇▇▇, the “Alternate Managers,” and the Alternate Managers and Manager are collectively referred to as the “Managers”) furnished to the Company in writing by any Manager expressly for inclusion in any of the aforementioned documents.
(f) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date of hereof, and at each Representation Date, as the Prospectus and any amendment case may be, included or supplement thereto, will not contain any include an untrue statement of a material fact or omitted 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; provided. The preceding sentence does not apply to statements in or omissions from the Prospectus, howeveras amended or supplemented, that in reliance upon and in conformity with written information relating to the Managers furnished to the Company and in writing by the Operating Partnership make no representation and warranty with respect to Managers expressly for inclusion in any Agent Information. The documents incorporated, or to be incorporated, of the aforementioned documents.
(g) Each document incorporated by reference in the Registration Statement and or the ProspectusProspectus heretofore filed, at the time when it was filed (or, if any amendment with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer respect to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any such document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each was filed, when such Issuer Free Writing Prospectus complied and will comply amendment was filed), conformed in all material respects with the Securities requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to the extent required therebyany such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(h) Each issuer free writing prospectus (as defined in Rule 433), as of its issue date and as of each Applicable Time did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document incorporated by reference therein deemed to be a part thereof that has not been superseded or modified and, when taken together modified. The foregoing sentence does not apply to statements in or omissions from any issuer free writing prospectus based upon and in conformity with the Prospectus accompanying, or delivered prior written information furnished to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized Managers specifically for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writinguse therein.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries stock of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by validly issued, are fully paid and nonassessable and have been issued in compliance with applicable federal and state securities laws. None of the Company and accepted for record with the Maryland State Department Company’s outstanding shares of Assessments and Taxation Common Stock or preferred stock (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions ”) were issued in violation of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan any preemptive rights, rights of Distribution” insofar as such statements summarize agreements, documents first refusal or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is other similar rights; except as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects is not a party to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no or bound by any outstanding options, warrants or other similar rights to purchasesubscribe for, agreements or other contractual obligations to issue, sell, transfer or rights to convert acquire, any obligations of its capital stock or any securities convertible into or exchange exchangeable for any securities for, units of partnership interest in such capital stock; the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be issued and sold by the Company hereunder have been duly authorized and, when issued and delivered against full payment therefore therefor in accordance with the terms of this Agreement, hereof will be validly issued, fully paid and non-assessable, nonassessable and the issuance of such Placement Shares will not be subject to or in violation free of any preemptive rights, rights of first refusal or other or similar rights. Upon payment ; the capital stock (including the Shares) of the purchase price Company conforms to the description thereof contained in the Prospectus; and issuance and the delivery of the Placement Shares to be issued and being sold by the Company in accordance herewith, against payment therefor pursuant to the purchasers thereof terms of this Agreement will receive good, pass valid and marketable title to such Placement Sharesthe Shares being sold by the Company, free and clear of all Liensany claim, encumbrance or defect in title, and without notice of any lien, claim or encumbrance. The certificates, if any, to be certificates used by the Company to evidence the Placement Shares will be Common Stock or the Preferred Stock are in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement valid and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSEsufficient form.
(uj) The shares of Common Stock initially issuable upon conversion Immediately after the transactions contemplated by this Agreement, all of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, and outstanding Common Units (as defined below) will be validly issued, fully paid and nonassessable. Immediately after the transactions contemplated by this Agreement, none of the outstanding common units of limited partnership interest in the Operating Partnership (“Common Units”) or preferred units of limited partnership interest in the Operating Partnership (“Preferred Units”) has been or will be issued or is owned or held in violation of any preemptive right, right of first refusal or other similar right; and the outstanding Common Units and Preferred Units have been or will be offered, sold and issued by the Operating Partnership in compliance with applicable federal and state securities laws.
(k) Each of the Company and its subsidiaries is duly organized and validly existing in good standing under the laws of the state of its incorporation or organization with full corporate, partnership or entity power and authority, as the case may be, to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify has not had or will not have a material adverse effect on the condition (financial or other), business, properties, or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”). The Company is the sole general partner of the Operating Partnership, and the Company owns a percentage interest in the Operating Partnership disclosed in the Prospectus. Except as described above, the Company or the Operating Partnership is the sole direct or indirect owner of all of the equity interests in each of the subsidiaries other than the Operating Partnership, Mid-America Multifamily Fund I, LLC and Mid-America Multifamily Fund II, LLC.
(l) The outstanding equity interests of each of the Company’s subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interests, liens, encumbrances, equities or claims. The Company does not have any subsidiaries and does not own a material interest in or control, directly or indirectly, any other corporation, partnership, joint venture, association, trust or other business organization, except as set forth in Exhibit 21 to the Company’s most recent Annual Report on Form 10-K incorporated by reference into the Registration Statement. As used in this Agreement, subsidiaries shall mean direct and indirect subsidiaries of the Company.
(m) Except as described in the Prospectus, there is no action, suit, inquiry, proceeding or investigation by or before any court or governmental or other regulatory or administrative agency or commission pending or, to the knowledge of the Company, threatened, against or involving the Company or its subsidiaries, which would individually or in the aggregate prevent or adversely affect the transactions contemplated by this Agreement or reasonably be expected to result in a Material Adverse Effect. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Prospectus or to be filed as an exhibit to the Registration Statement that are not described, filed or incorporated by reference in the Registration Statement and the Prospectus as required by the Securities Act. All such contracts to which the Company or any of its subsidiaries is a party have been duly authorized, executed and delivered by the Company or the applicable subsidiary, constitute valid and binding agreements of the Company or the applicable subsidiary and are enforceable against the Company or the applicable subsidiary in accordance with the terms thereof, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, or other laws of general applicability relating to or affecting creditors’ rights generally or by general equity principles. Neither the Company nor the applicable subsidiary has received notice or been made aware that any other party is in breach of or default to the Company or its subsidiaries under any of such contracts.
(n) Neither the Company nor any of its subsidiaries is (i) in violation of (A) its Organizational Documents (as defined in Section 20 below), (B) to the Company’s knowledge any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of its subsidiaries, the violation of which would reasonably be expected to have a Material Adverse Effect or (C) any decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries; or (ii) in default in the performance of any obligation, agreement or condition contained in (A) any bond, debenture, note or any other evidence of indebtedness or (B) any agreement, indenture, lease or other instrument (each of (A) and (B), an “Existing Instrument”) to which the Company or any of its subsidiaries is a party or by which any of their properties may be bound, which default would reasonably be expected to have a Material Adverse Effect; and, to the Company’s knowledge, there does not exist any state of facts that constitutes a default or an event of default on the part of the Company or any of its subsidiaries as defined in such documents or that, with notice or lapse of time or both, would reasonably be expected to constitute such a default or event of default which would have a Material Adverse Effect.
(o) The Company and the Operating Partnership have full legal right, power and authority to enter into and perform this Agreement and to consummate the transactions contemplated herein, including the issuance, sale and delivery of the Shares as provided herein and the Operating Partnership’s issuance of such shares the Common Units to the Company. The Company’s and the Operating Partnership’s execution and delivery of Common Stock will not this Agreement and the performance by the Company and the Operating Partnership of their obligations under this Agreement have been duly and validly authorized by the Company and the Operating Partnership and this Agreement has been duly executed and delivered by the Company and the Operating Partnership, and constitutes a valid and legally binding agreement of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except to the extent enforceability may be subject tolimited by bankruptcy, insolvency, reorganization, or other laws of general applicability relating to or affecting creditors’ rights general
Appears in 1 contract
Sources: Sales Agreement (Mid America Apartment Communities Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to and agree with each of the Agent that as of Underwriters on the date hereof, as of each Representation on the Closing Date (as defined belowin Section 4 hereof) and on which a certificate is required to be delivered pursuant to each Option Closing Date (as defined in Section 7(q2 hereof), and as of the time of each sale of any Placement Shares pursuant to this Agreementif any, that:
(a) No order preventing or suspending the use of the Statutory Prospectus has been issued by the Commission, and the Statutory Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and the Statutory Prospectus, as of its date and as of the date hereof, did not contain 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 that the Company and the Operating Partnership make no representation and warranty with respect to any amendment statements or supplement omissions made in reliance upon and on in conformity with information relating to any Settlement DateUnderwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Statutory Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(b) The Pricing Disclosure Package at the Applicable Time did not, does not and as of the Closing Date and as of each Option Closing Date, as the case may be, will not contain 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, provided that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as defined such in Section 9(a8(b) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(ci) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have has been and remain eligible for registration declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The ; the Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Datedate, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (ii) as of the date of the Prospectus and any amendment or supplement theretothereto and as of the Closing Date and as of each Option Closing Date, as the case may be, the Prospectus will not contain 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, provided that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationstatements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Section 8(b) hereof. The documents incorporated, or to be incorporated, by reference in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus, at the time filed with the Commission, Commission complied or will comply, in all respects to the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the Securities Act, as applicable, and the rules and regulations thereunder.
(d) Other than the Registration Statement Statement, the Statutory Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Agents Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Schedule II annexed hereto, each electronic road show and any other written communications approved in writing in advance by the AgentRepresentatives. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and ; did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Statutory Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not not, and as of the Closing Date and as of each Option Closing Date, as the case may be, will not not, contain 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, provided that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationstatements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus or Statutory Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Section 8(b) hereof.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405405 under the Securities Act) as of the eligibility determination date for purposes of Rules Rule 164 and Rule 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement Statement, Pricing Disclosure Package and the Prospectus.
(f) The Placement Company has applied to have the Shares have been authorized for listing listed on the New York Stock Exchange (the “NYSE, subject to official notice of issuance and the ”). The Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, Stock and each of the Company's ’s 9.25% Series A Cumulative Redeemable Preferred Stock, par value $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, par value $0.01 par value per share (the “Series B Preferred Stock”), the Company's and 7.125% Series C Cumulative Redeemable Preferred stockStock, par value $0.01 per share (the “Series C Preferred Stock” and, together with the Series A Preferred Stock and the Series B Preferred Stock, the “Outstanding Company Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D any series of Outstanding Company Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”)) other than Summit Capital Partners, LLC, and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the ProspectusRegistration Statement was initially filed with the Commission, except as has been disclosed to the Representatives in writing.
(ih) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(ji) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware Delaware, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(kj) Each direct and indirect “significant subsidiary” (as defined in Rule 1-02(w02(x) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or and indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectlySubsidiary, in each case free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 III hereto specifically identifies all subsidiaries of the Company Subsidiaries that are “significant subsidiariesSignificant Subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(lk) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(ml) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(om) The statements in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and of Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” “Additional Federal Income Tax Considerations” and “Plan of DistributionUnderwriting,” insofar as such statements summarize legal matters, agreements, documents or legal or governmental proceedings discussed therein, are accurate, complete and fair summaries of such legal matters, agreements, documents or legal or governmental proceedings in all material respects.
(pn) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to Pricing Disclosure Package and will be as set forth in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects as to legal matters to the description thereof contained in the Registration Statement Statement, Pricing Disclosure Package and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The ” All of the issued and outstanding shares of Common Stock and the Series D Outstanding Company Preferred Stock conform (i) have been duly authorized and validly issued, are fully paid and nonassessable and (ii) have been issued in compliance with federal and state securities laws. The shares of Common Stock initially issuable upon conversion of any of the Outstanding Company Preferred Stock have been duly authorized and, when issued upon conversion of any of the Outstanding Company Preferred Stock in accordance with the terms of the Articles Supplementary relating thereto, as applicable, will conform be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to or in violation of any preemptive or similar rights. The Board of Directors of the Company has duly and validly reserved such shares of Common Stock for issuance upon conversion of the Outstanding Company Preferred Stock. The form of certificate used to evidence the Common Stock is in substantially the form filed as to legal matters to the descriptions thereof contained in an exhibit to, or incorporated by reference in, the Registration Statement Statement, is in proper form and complies in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company (the “Bylaws”) and the Prospectus under requirements of the caption “Description of Common and Preferred StockNYSE.”
(ro) Except as described in the Registration Statement Statement, the Pricing 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject toPar
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, the Underwriters as set forth below in this Section 1:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the Agent that knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information.
(b) The Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act”). The documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(c) The Registration Statement, as of each Representation Date effective date (including each deemed effective date with respect to the Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof and at the Closing Time or any Option Closing Time, each as defined below) on which herein, did not, and does not contain an untrue statement of a certificate is material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to Section 7(qmake the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of the applicable filing date, the date hereof and at the Closing Time and on each Option Closing Time (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 8(b) hereof); the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) As of 3:50 p.m. (Eastern time) on December 3, 2024 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending Notes and at the use of Closing Time and each Option Closing Time, the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did Disclosure Package will not, does not and will not contain any 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; provided, however, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(A) At the original effectiveness of the Registration Statementissue date or date of first use and at all subsequent times through the Initial Sale Time, (B) each Issuer Free Writing Prospectus did not, and at the time of the most recent amendment thereto for the purposes each sale of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) Notes and at the time the Company or any person acting on its behalf (within the meaningClosing Time and each Option Closing Time, for this clause onlyeach such Issuer Free Writing Prospectus will not, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) The Registration Statement is contain an “automatic shelf registration statement” (as defined in Rule 405) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporated, statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to be incorporated, by reference the Company expressly for use therein (that information being limited to that described in the Registration Statement last sentence of the first paragraph of Section 8(b) hereof).
(e) In connection with this offering, the Company has not offered and will not offer the Notes in a manner in violation of the Securities Act; and the Company has not distributed and will not distribute any offering material in connection with the offer and sale of the Notes except for the Preliminary Prospectus, the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) or the Registration Statement or for communications satisfying the requirements of the Securities Act or Rule 134 under the Securities Act or Act.
(iif) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with (including the Securities Act (to the extent required therebyFinal Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(eg) The Company was not an “ineligible issuer” (as defined is eligible to use Free Writing Prospectuses in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and Act; any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the rules Commission in accordance with the requirements of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), Securities Act; and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and each Free Writing Prospectus that the Company has not received any notice from filed, or is required to file, pursuant to Rule 433(d) under the NYSE regarding Securities Act or that was prepared by or on behalf of or used by the revocation of such listing Company complies or otherwise regarding will comply in all material respects with the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge requirements of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filedSecurities Act.
(h) To Except for the knowledge Issuer Free Writing Prospectuses identified in Schedule II hereto, the information set forth on Exhibit A and any electronic road show relating to the offering and sale of the Notes contemplated herein, the Company has not prepared, used or referred to, and will not, without the Operating Partnership, there are no affiliations or associations between (i) any member prior consent of the Financial Industry Regulatory AuthorityRepresentatives, Inc. (“FINRA”)prepare, and (ii) the Company use or refer to, any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Free Writing Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporatedPreliminary Prospectus, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriters for use in connection with the public offering of the Notes contemplated herein have been and is in good standing as a foreign corporation in each jurisdiction in which will be identical to the conduct versions of its business or its ownership or leasing of property requires such qualificationdocuments transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects permitted by Regulation S-T of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Securities Act.
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in Company filed the Registration Statement and with the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse EffectCommission before using any Issuer Free Writing Prospectus.
(k) Each “significant subsidiary” The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus.
(as defined in Rule 1-02(wl) of Regulation S-X) of the Company There are no persons with registration or other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organizedsimilar rights to have any equity or debt securities, is validly existing as a corporationincluding securities which are convertible into or exchangeable for equity securities, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority registered pursuant to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned otherwise registered by the Company or the Operating Partnership directly under the Securities Act, all of which registration or indirectlysimilar rights are fairly summarized in the Registration Statement, free the Prospectus and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly takenDisclosure Package.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company as of September 30, 2024 is as set forth under the heading “Capitalization” in the Registration Statement Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, agreements or employee benefit plans or dividend reinvestment the exercise of convertible or stock purchase plans exchangeable securities or options, in each case referred to in the Registration Statement Statement, the Disclosure Package and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized All of the issued and outstanding shares of capital stock of the Company conforms have been duly authorized and will validly issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and the requirements of the New York Stock Exchange, Inc. (the “NYSE”) and were not issued in violation of any preemptive, right of first refusal, or similar right. Attached as Schedule III is a true and complete list of each entity (other than a securitization entity) in which the Company has a direct or indirect majority equity or voting interest that is consolidated with the Company for financial reporting purposes under U.S. generally accepted accounting principles (each, a “Subsidiary” and, together, “Subsidiaries”). All of the issued and outstanding equity interests of each Subsidiary that is a significant subsidiary within the meaning of Regulation S-X (each, a “Significant Subsidiary” and, together, the “Significant Subsidiaries”) have been duly and validly authorized and issued, are fully paid and nonassessable, have been issued in compliance with federal and state securities laws and, if any of its securities are listed on the NYSE, the requirements of the NYSE, were not issued in violation of any preemptive, right of first refusal, or similar right and, except as set forth in the Disclosure Package and the Prospectus, or otherwise specified in Schedule III, are owned, directly or indirectly, by the Company free and clear of all liens. There are no outstanding options, warrants or other rights to acquire or purchase, or instruments convertible into or exchangeable for, any equity interests of the Company or any Subsidiary, except as set forth in the Disclosure Package and the Prospectus or held by the Company or any of its Subsidiaries.
(n) Each of the Company and each Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its property and to conduct its business, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, management, financial position, results of operations or prospects of the Company and the Subsidiaries taken as a whole (a “Material Adverse Effect”) or on the performance by the Company or the Operating Partnership of its obligations under this Agreement.
(o) The Notes conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement Statement, the Prospectus and the Disclosure Package; the Indenture conforms in all material respects to the descriptions thereof contained in the Registration Statement, the Prospectus, and the Disclosure Package; and the statements in the Registration Statement, the Prospectus and the Disclosure Package under the headings “Additional U.S. Federal Income Tax Considerations” and “U.S. Federal Income Tax Considerations” fairly summarize in all material respects the legal matters therein described.
(p) The execution and delivery of, and the performance by each of the Company and the Operating Partnership of its obligations under (including the issuance and sale of the Notes and the use of proceeds from the sale of the Notes as described in Disclosure Package and the Prospectus under the caption “Description Use of Common Proceeds”), this Agreement have been duly and Preferred Stock.”
(r) Except as described in validly authorized by the Registration Statement Company and the ProspectusOperating Partnership, 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, units of partnership interest in and this Agreement has been duly executed and delivered by the Company and the Operating Partnership (“OP Units”) or other ownership interests in and, assuming due authorization, execution, delivery, validity, legally binding effect and enforceability hereof by you and thereof by the counterparties thereto, this Agreement constitutes the valid and legally binding agreements of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership are outstandingin accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s and the Operating Partnership’s obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law. The execution and delivery of, and the performance by, the Company of its obligations under the Indenture have been duly and validly authorized by the Company, and the Indenture constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution hereunder and thereunder may be limited by federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law.
(s) Except as described in the Registration Statement 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.
(tq) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares Notes to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued, authenticated and delivered against payment therefor in accordance herewithwith this Agreement and the Indenture, the purchasers thereof will receive good, constitute valid and marketable title legally binding obligations of the Company, except as may be limited by applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to such Placement Sharesor affecting creditors’ rights generally and by general equitable principles, free and clear regardless whether enforcement is considered in a proceeding in equity or at law, that may limit the right to specific enforcement of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement remedies and will be in proper the form contemplated by, and entitled to the benefits of, the Indenture.
(r) The Company has taken all necessary actions to ensure that the Notes will be approved for listing on the NYSE, subject to official notice of issuance; the Company has taken all necessary actions to ensure that, upon and at all times after the NYSE approves the Notes for listing, the Company is and will comply be in compliance in all material respects with all applicable legal requirements, the corporate governance requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of set forth in the NYSE’s listing standards that are then in effect.
(us) The shares of Common Stock initially issuable upon conversion Management Agreement pursuant to which the Manager acts as the manager and adviser of the Series D Preferred Stock have Company, the Operating Partnership and their respective Subsidiaries, has been duly authorized andauthorized, when issued upon conversion executed and delivered by each of the Series D Preferred Stock Company, the Operating Partnership and their respective Subsidiaries, as applicable, and constitutes a valid and binding agreement of each of the Company, the Operating Partnership and their respective Subsidiaries enforceable in accordance with the terms of the Articles Supplementaryits terms, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject except to
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership hereby jointly and severally, severally represent and warrant to the Agent that warrant, as of the date hereofhereof and at all times during the term of this Agreement (provided that, to the extent such representations and warranties are given only as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing specified date or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, howeverdates, the Company and the Operating Partnership only make no representation such representations and warranty warranties as of such date or dates), as follows:
2.1 In connection with respect to any Agent Information the Offering, the Company has prepared and filed with the Securities and Exchange Commission (as defined in Section 9(a) hereofthe “Commission”).
, a registration statement on Form S-11 (A) At No. 333-179521), including a preliminary prospectus, for the original effectiveness registration 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 Shares under the Securities Act of 1933, as amended (whether such amendment was by post-effective amendmentthe “Securities Act”), incorporated report filed pursuant to Section 13 or 15(d) and the applicable rules and regulations of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 Commission promulgated under the Securities Act (the “Rule 405Securities Act Rules and Regulations”)).
. The Company has prepared and filed such amendments thereto, if any, and such amended preliminary prospectuses, if any, as may have been required by the Commission through the date hereof and will file such additional amendments and supplements thereto as may hereafter be required. As used in this Agreement, (ca) The the term “Registration Statement” means, except as otherwise specified herein, the Registration Statement and the prospectus contained therein, as finally amended as of the date the Registration Statement is an declared effective by the Commission, provided that, if the Company files any post-effective amendments to the Registration Statement, “automatic shelf registration statementRegistration Statement” (shall refer to the Registration Statement as defined in Rule 405) so amended by the last post-effective amendment declared effective by the Commission; the term “Effective Date” means the applicable date upon which the Registration Statement was first declared effective by the Commission and the Securities have been and remain eligible for registration date upon which each subsequent post-effective amendment to the Registration statement is declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with Commission, (b) the Commission. No order suspending term “Prospectus” means, except as otherwise specified herein, , as appropriate, (i) the effectiveness prospectus constituting a part of the Registration Statement has been issued as of the initial and any subsequent Effective Date, (ii) the prospectus filed with the Commission pursuant to Rule 424(b) after the Registration Statement is initially declared effective by the Commission, and no proceeding for that purpose (iii) any amendments or pursuant to Section 8A of the Securities Act against the Company or related supplements to the offering of Prospectus filed with the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents Commission pursuant to Rule 430B(f)(2424(b) and at each Settlement Date, complied and will comply in all material respects with the Securities Actor otherwise, and did not and will not contain any untrue statement of a material fact (c) the term “Filing Date” means the applicable date upon which the Registration Statement or omit to state a material fact required to be stated therein Prospectus or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time thereto is filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Actas applicable.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Dealer Manager Agreement (Moody National REIT I, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agent Agents that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement:.
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(Ab) At The Company meets the original effectiveness requirements for use 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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) Form S-3 under the Securities Act) made any offer relating to ; the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 Registration Statement has become effective under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No no order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating PartnershipCompany, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain 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 and the Operating Partnership make makes no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(dc) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in their its capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the AgentAgents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(ed) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(fe) The Placement Shares have been authorized for listing on the NYSENasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSENasdaq, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSENasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating PartnershipCompany, threatened or contemplated, and the Company has not received any notice from the NYSE Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSENasdaq.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(if) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property properties and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(jg) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware Maryland, has the full power and authority to own or own, and lease, as the case may be, its property properties and to operate its property properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, not reasonably be expected to have a Material Adverse Effect.
(kh) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than Company, including the Operating Partnership (each a “Subsidiary” and collectively collectively, the “Subsidiaries”) ), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property properties and to operate its property properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest stock or other equity interests of each Subsidiary of the Company or the Operating Partnership have been duly authorized, and validly authorized and issued and are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest stock or other equity interests of each Subsidiary Subsidiary, and all such shares or other equity interests are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of (as such term is defined in Rule 1-02(w) 02 of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly takenX).
(mi) The Operating Partnership This Agreement has been duly authorized, executed and delivered by the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement Company and the consummation by it Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly executed by the Company authorized and, when issued, delivered and accepted paid for record in accordance with the Maryland State Department terms of Assessments this Agreement, will be validly issued, fully paid and Taxation (non-assessable, and the “SDAT”)issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(pj) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Capital Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(rk) Except as described disclosed in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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, for shares of capital stock of or ownership interests in the Company are outstanding.
(tl) The Placement Shares to be sold None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of Operating Partnership of, nor the purchase price and issuance and delivery of the Placement Shares to be issued and sold performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in accordance herewitha breach or violation of, or imposition of, any Lien upon any property or other assets of the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit Company or any Subsidiary pursuant to, or incorporated by reference inconstitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, Company or any of the requirements Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and RestatementRestatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and BylawsRestated By-laws of the Company, as amendedamended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 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 behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company and the requirements or any of the NYSESubsidiaries.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating PartnershipPartnership represent and warrant, jointly and severally, represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(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 Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) 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 such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration StatementRepresentatives, as of the date hereof, and any post-effective amendment theretoto the Representatives and each other Underwriter named in the applicable Terms Agreement, as of its applicable effective the date thereof, as of the Closing Time (as defined below) and, if applicable, as of each Date of Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement DateRepresentation Date will comply, complied and will comply in all material respects with the Securities requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The Registration Statement, at the time the Registration Statement became effective, did not not, and as of each Representation Date, will not not, contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . The Prospectus, as of the date hereof does not, and as of each Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to you by the Company or the Operating Partnership for use in connection with an offering of Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use), Closing Time and any amendment or supplement theretoDate of Delivery, if any, will not contain any 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; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which shall constitute the Statement of Eligibility on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an Indenture. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Securities, the Company and the Operating Partnership make no representation have complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary prospectus supplement and warranty Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with respect to any Agent Information. the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and the ProspectusProspectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (to the extent required thereby"1934 Act Regulations"), and did notand, does not and will not include any information that conflicted, conflicts or will conflict when read together with the other information contained in the Prospectus, at the time the Registration Statement became effective and as of the applicable Representation Date or during the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusperiod specified in Section 3(f), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(eiv) KPMG Peat Marwick LLP, the accounting firm that audited the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement and Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations.
(v) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated financial statements included in, or incorporated by reference into, the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position of the respective entity or entities presented therein at the respective dates indicated and the results of their operations for the respective periods specified. Except as otherwise stated in the Registration Statement and Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly the information required to be stated therein. The Company's ratios of earnings to fixed charges (actual and, if any, pro forma) included in the Prospectus under the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included or incorporated by reference in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Pro forma financial information included in or incorporated by reference in the Registration Statement and the Prospectus has been prepared in accordance with the applicable requirements of the 1933 Act, the 1933 Act Regulations and guidelines of the American Institute of Certified Public Accountants with respect to pro forma financial information and includes all adjustments necessary to present fairly the pro forma financial position of the Operating Partnership and the Company, as applicable, at the respective dates indicated and the results of operations for the respective periods specified.
(fvi) The Placement Shares have been authorized for listing on No stop order suspending the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules effectiveness of the NYSE, including, without limitation, the requirements Registration Statement or any part thereof has been issued and no proceeding for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits that purpose has been instituted or proceedings is pending or, to the knowledge of the Company and or the Operating Partnership, threatened by the Commission or contemplatedby the state securities authority of any jurisdiction, and any request on the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge part of the CompanyCommission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and or the Operating Partnership, there are no affiliations threatened by the Commission or associations between (i) by the state securities authority of any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writingjurisdiction.
(ivii) The Company has been duly incorporated, Since the respective dates as of which information is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described given in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationProspectus, except to the extent that the failure to be so qualified or be in good standing would not as otherwise stated therein, (iA) have a there has been no material adverse effect on change in the assetscondition, business, condition (financial or otherwise), or in the earnings, propertiesassets, management, results of operations business affairs or business prospects of the Company, the Operating Partnership and any of their respective subsidiaries, whether or not arising in the Subsidiaries ordinary course of business; (B) there has been no adverse change, material to the Duke Group (as hereinafter defined), taken ) as a whole, in the condition, financial or (ii) prevent otherwise, or materially interfere with consummation in the earnings, assets, business affairs or business prospects of any of the transactions contemplated hereby real properties owned, directly or indirectly, by the Company, the Operating Partnership or any subsidiary (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i"Properties") or any entity wholly or partially owned by the Company, the Operating Partnership or any subsidiary which owns any Property (iia "Property Partnership") being herein (the Company, the Operating Partnership, the subsidiaries and the Property Partnerships are hereinafter jointly referred to as the "Duke Group"), whether or not arising in the ordinary course of business; (C) no material casualty loss or material condemnation or other material adverse event with respect to any Property has occurred; (D) there have been no transactions or acquisitions entered into by the Duke Group, other than those arising in the ordinary course of business, which are material with respect to the Duke Group as a “Material Adverse Effect”).
whole; (jE) The neither the Company, the Operating Partnership nor any of their respective subsidiaries has incurred any obligation or liability, direct, contingent or otherwise which is material to the Duke Group as a whole; (F) there has been duly organized, is validly existing no material change in the short-term debt or long-term debt of the Duke Group as a limited whole; (G) except for regular quarterly dividends on the Common Stock and dividends on the Preferred Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock; and (H) with the exception of transactions in connection with stock option and dividend reinvestment plans, the issuance of shares of Common Stock upon the exchange of partnership interests in good standing under the laws Operating Partnership ("Units") and the issuance of Units in connection with the State acquisition of Delaware real or personal property, there has been no change in the full power and authority to own capital stock or leasein the partnership interests, as the case may be, its property and to operate its property and conduct its business as described in of the Registration Statement Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Prospectus Operating Partnership has been duly formed, and is duly qualified to transact business validly existing and is in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus and to enter into and perform its obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's subsidiaries has been duly formed, and is validly existing and in good standing as a corporation or partnership under the laws of its jurisdiction of organization, with corporate or partnership power and authority to conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their respective subsidiaries and the Property Partnerships is duly qualified or registered as a foreign limited partnership or corporation in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by reason of the conduct of its business or its ownership or leasing of property requires such qualificationor the conduct of business, except to the extent that where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Duke Group considered as a single enterprise (a "Material Adverse Effect. All of ").
(xi) If the applicable Underwritten Securities are issued by the Company, and if the Prospectus contains the caption "Capitalization," the authorized, issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary stock of the Company as of the date specified therein is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws) and none of such shares of capital stock was issued in violation of preemptive or other similar rights of any securityholder of the Company.
(xii) If the applicable Underwritten Securities are issued by the Operating Partnership, and if the Prospectus contains the caption "Capitalization," the partner's equity of the Operating Partnership is as set forth in the column entitled "Historical" under such caption. All the issued and outstanding Units have been duly authorized, authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code Section 23-16-7-8, and have been issued offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal, state or foreign securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all laws).
(xiii) All of the issued and outstanding shares of capital stockstock and partnership interests, units of limited partnership interest and units of membership interest as the case may be, of each Subsidiary subsidiary have been validly issued and fully paid and, other than the Property Partnerships, Duke Realty Services Limited Partnership (the "Services Partnership") and Duke Construction Limited Partnership (the "Construction Partnership"), are owned by the Company or Company, the Operating Partnership directly or indirectlya subsidiary, in each case free and clear of all any security interestsinterest, liensmortgage, mortgagespledge, encumbranceslien, pledgesencumbrance, claims claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other defects of any kind (collectivelythan the subsidiaries and the Property Partnerships, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company that are “significant subsidiaries” Duke Group considered as a single enterprise. Duke Services, Inc. is the sole general partner and a 1% owner of the Company within Services Partnership, and the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has Operating Partnership and DMI Partnership are the corporate power sole limited partners and authority to execute 9% and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization90% owners, execution and delivery by it of this Agreement and consummation by it respectively, of the transactions contemplated hereby have been duly Services Partnership. The Services Partnership is the sole general partner and validly takena 1% owner of the Construction Partnership. The 99% limited partnership interest of the Construction Partnership is owned by Duke Realty Construction, Inc., an Indiana corporation which is owned 4.04% by the Services Partnership and 95.96% by DMI Partnership.
(mxiv) The Operating Partnership has Except for transactions described in the partnership power Prospectus and authority to execute transactions in connection with dividend reinvestment plans, stock option and deliver this Agreement other employee benefit plans, and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorizationa Rights Agreement, execution and delivery by it dated as of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by July 23, 1998, between the Company and accepted for record with the Maryland State Department of Assessments and Taxation American Stock Transfer & Trust Company (the “SDAT”"Rights Agreement").
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, there are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and no outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement and the Prospectus, no optionsrights, warrants or other rights options to purchaseacquire, or instruments convertible into or exchangeable for, or agreements or other obligations understandings with respect to issuethe sale or issuance of, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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 partnership or other equity interest in the Company are outstandingCompany, the Operating Partnership or any subsidiary except for the shares of Common Stock which may be issued in exchange for Units.
(txv) Each of the Property Partnerships has been duly formed as a partnership or a limited liability company, as the case may be, and is validly existing and in good standing as a partnership or limited liability company under the laws of its jurisdiction of organization and, if formed under the laws of a jurisdiction other than the State of Indiana, in good standing under the laws of such jurisdiction; each of the Property Partnerships has the requisite power and authority to own, lease and operate its properties, to conduct the business in which it is engaged and to enter into and perform its respective obligations under the agreements, to which it is a party. Each of the partnership or operating agreements, as the case may be, of the Property Partnerships is in full force and effect.
(xvi) The Placement Shares to be sold by the Company applicable Underwritten Securities, if such Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement, and, when issued and delivered by the Company pursuant to this Agreement and the applicable Terms Agreement against payment therefore of the consideration set forth in accordance with the terms of this AgreementTerms Agreement or any Delayed Delivery Contract (as defined in Section 2 hereof), will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company such Underwritten Securities in accordance herewith, each of the purchasers thereof Underwriters will receive good, valid and marketable title to such Placement SharesUnderwritten Securities, free and clear of all Liens. The certificatessecurity interests, if anymortgages, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit topledges, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Underwriting Agreement (Duke Realty Investments Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, Partnership hereby jointly and severally, severally represent and warrant to the Agent that warrant, as of the date hereofhereof and at all times during the term of this Agreement (provided that, to the extent such representations and warranties are given only as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing specified date or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain 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, howeverdates, the Company and the Operating Partnership only make no representation such representations and warranty warranties as of such date or dates), as follows:
2.1 In connection with respect to any Agent Information the Offering, the Company has prepared and filed with the Securities and Exchange Commission (as defined in Section 9(a) hereofthe “Commission”).
, a registration statement on Form S-11 (A) At No. 333- ), including a preliminary prospectus, for the original effectiveness registration 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 Shares under the Securities Act of 1933, as amended (whether such amendment was by post-effective amendmentthe “Securities Act”), incorporated report filed pursuant to Section 13 or 15(d) and the applicable rules and regulations of the Exchange 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) under the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 Commission promulgated under the Securities Act (the “Rule 405Securities Act Rules and Regulations”)).
(c) . The Company has prepared and filed such amendments thereto, if any, and such amended preliminary prospectuses, if any, as may have been required by the Commission through the date hereof and will file such additional amendments and supplements thereto as may hereafter be required. As used in this Agreement, the term “Registration Statement” means the Registration Statement and the prospectus contained therein, as finally amended as of the date the Registration Statement is an declared effective by the Commission, provided that, if the Company files any post-effective amendments to the Registration Statement, “automatic shelf registration statementRegistration Statement” (shall refer to the Registration Statement as defined in Rule 405) so amended by the last post-effective amendment declared effective by the Commission; the term “Effective Date” means the applicable date upon which the Registration Statement was first declared effective by the Commission and the Securities have been and remain eligible for registration date upon which each subsequent post-effective amendment to the Registration statement is declared effective by the Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with Commission; the Commission. No order suspending term “Prospectus” means, and as used in this Agreement shall be deemed to refer to and include, as appropriate, (a) the effectiveness prospectus constituting a part of the Registration Statement has been issued as of the initial and any subsequent Effective Date, (b) the prospectus filed with the Commission pursuant to Rule 424(b) after the Registration Statement is initially declared effective by the Commission, and no proceeding for that purpose (b) any amendments or pursuant to Section 8A of the Securities Act against the Company or related supplements to the offering of Prospectus filed with the Placement Shares has been initiated or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to Agents Commission pursuant to Rule 430B(f)(2424(b) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleadingotherwise; and as of the term “Filing Date” means the applicable date of upon which the initial Prospectus and or any amendment or supplement thereto, will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time thereto is filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(d) Other than the Registration Statement and the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in clause (i) below) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain 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 and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(e) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened or contemplated, and the Company has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (ii) the Company or any of the Company’s officers, directors, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectus, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(l) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract
Sources: Dealer Manager Agreement (Moody National REIT I, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, hereby represent and warrant to the Agent that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(q), and as of the time of each sale of any Placement Shares pursuant to this Agreement:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, Underwriters and the Prospectus, as of its date and Forward Purchasers as of the date of any amendment or supplement and on any Settlement Datethis Agreement, did not, does not and will not contain 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 as of the circumstances under which they were madeApplicable Time, not misleading; providedas of the Closing Time and as of each Option Closing Time (if any), however, and agree with each of the Company Underwriters and the Operating Partnership make no representation and warranty with respect to any Agent Information (Forward Purchasers as defined in Section 9(a) hereof).follows:
(A) At the original effectiveness of respective times the Registration StatementStatement or any amendments thereto were filed with the Commission, (B) at the time of the most recent amendment thereto to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the any time the Company or any person or entity acting on its behalf (within the meaning, for this clause (C) only, of Rule 163(c) under the Securities Act)) made any offer relating to the Securities Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of at the date hereof, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”)).
(c) . The Registration Statement is an “automatic shelf registration statement,” (as defined in Rule 405) 405 and the Securities Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such an “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to the use of the automatic shelf registration statement form. Any written communication that was an offer relating to the Shares made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c)) prior to the filing of the Registration Statement has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163.
(b) The Company meets the requirements for use of Form S-3 under the Securities Act and the Shares have been duly registered under the Securities Act pursuant to the Registration Statement. The Registration Statement became and any post-effective upon filing with amendments thereto have become effective under the Commission. No Securities Act, no stop order suspending the effectiveness of the Registration Statement has been issued by under the Commission, Securities Act and no proceeding proceedings for that purpose have been instituted or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated are pending or, to the knowledge of the Company and the Operating PartnershipCompany, are contemplated or threatened by the Commission, and the Company has complied with any request on the part of the Commission for additional information. The Registration Statement was initially filed with the Commission on September 1, 2021.
(c) Registration Statement, as Prospectus and Disclosure at Time of Sale.
(i) At the respective times that the Registration Statement and any amendments thereto became effective, at each time subsequent to the filing of the date hereof, and Registration Statement that the Company filed an Annual Report on Form 10-K (or any post-effective amendment thereto) with the Commission, as of its applicable effective date and at each deemed effective date with respect to Agents the Underwriters pursuant to Rule 430B(f)(2) ), and at each Settlement Datethe Closing Date (and, if any Additional Shares are purchased, at the applicable Option Closing Time), the Registration Statement and any amendments to any of the foregoing complied and will comply in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations and did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of .
(ii) At the date of respective times the Prospectus and or any amendment or supplement theretothereto was filed pursuant to Rule 424(b) or issued, at the Closing Date (and, if any Additional Shares are purchased, at the applicable Option Closing Time), and at any time when a prospectus is required (or, but for the provisions of Rule 172, would be required) by applicable law to be delivered in connection with sales of the Shares (whether to meet the requests of purchasers pursuant to Rule 173(d) or otherwise), neither the Prospectus nor any amendment or supplement thereto included or will not contain any include an untrue statement of a material fact or omitted 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; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all respects to the requirements of the Exchange Act.
(diii) Other than As of the Registration Statement and Applicable Time (except in the Prospectus, the Company (including its agents and representatives, other than the Agents in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus (other than as referred to in case of clause (iz) below) other than and as of each time prior to the Closing Date that an investor agrees (iorally or in writing) to purchase or, if applicable, reconfirms (orally or in writing) an agreement to purchase any Shares from the Underwriters, none of (x) any document not constituting a prospectus pursuant Issuer General Use Free Writing Prospectuses, if any, issued at or prior to Section 2(a)(10)(a) the Applicable Time, the Pre-Pricing Prospectus as of the Securities Act or Rule 134 under Applicable Time and the Securities Act or information, if any, included on Schedule II hereto, all considered together (ii) each electronic road show and any other written communications approved in writing in advance by collectively, the Agent. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby“Disclosure Package”), and did not, does not and will not include (y) any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such individual Issuer Limited Use Free Writing Prospectus, did not and when considered together with the Disclosure Package, or (z) any Issuer General Use Free Writing Prospectuses issued subsequent to the Applicable Time, when considered together with the Disclosure Package, included or will not contain any include an untrue statement of a material fact or omitted 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; provided.
(iv) Each preliminary prospectus and the Prospectus and any amendments or supplements to any of the foregoing filed as part of the Registration Statement or any amendment thereto filed pursuant to Rule 424 or delivered to the Underwriters for use in connection with the offering of the Shares, howevercomplied when so filed or when so delivered, as the case may be, in all material respects with the Securities Act and the Securities Act Regulations.
(v) The representations and warranties in the preceding paragraphs of this Section 3(c) do not apply to statements in or omissions from the Registration Statement, any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by the Underwriters as aforesaid consists of the information described as such in the penultimate sentence of Section 10(b) hereof.
(vi) At the respective times that the Registration Statement or any amendment to any of the foregoing were filed and as of the earliest time after the filing of the Registration Statement that the Company or any other offering participant made a bona fide offer of the Shares within the meaning of Rule 164(h)(2), and at the date hereof, the Company was not and is not an “ineligible issuer” as defined in Rule 405, in each case without taking into account any determination made by the Commission pursuant to paragraph (2) of the definition of such term in Rule 405; and without limitation to the foregoing, the Company has at all relevant times met, meets and will at all relevant times meet the requirements of Rule 164 for the use of a free writing prospectus (as defined in Rule 405) in connection with the offering contemplated hereby.
(vii) The copies of the Registration Statement and any amendments to any of the foregoing and the Operating Partnership make no representation copies of each preliminary prospectus, each Issuer Free Writing Prospectus that is required to be filed with the Commission pursuant to Rule 433 and warranty with respect the Prospectus and any amendments or supplements to any Agent Informationof the foregoing, that have been or subsequently are delivered to the Underwriters and the Forward Purchasers in connection with the offering of the Shares (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise) were and will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. For purposes of this Agreement, references to the “delivery” or “furnishing” of any of the foregoing documents to the Underwriters or Forward Purchasers and any similar terms, include, without limitation, electronic delivery.
(viii) Each Issuer Free Writing Prospectus (if any), as of its issue date and at all subsequent times through the completion of the public offering and sale of the Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus that has not been superseded or modified.
(d) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus, at the respective times they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations, as applicable, and 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 to make the statements therein not misleading.
(e) The Company was has not made and, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Shares that constitutes or would constitute an “ineligible issuerissuer free writing prospectus” (as defined in Rule 433) or that otherwise constitutes or would constitute a “free writing prospectus” (as defined in Rule 405) as or portion thereof required to be filed with the Commission or required to be retained by the Company pursuant to Rule 433; provided, that the prior written consent of the eligibility determination date for Representatives shall be deemed to have been given in respect of the Issuer General Use Free Writing Prospectuses, if any, listed on Schedule II hereto and, to any electronic road show in the form previously provided by the Company to and approved by the Representatives. Any such free writing prospectus consented to or deemed to have been consented to as aforesaid is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents, warrants and agrees that it has treated and will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of Rules 164 and 433 under clarity, the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectusparties hereto agree that all free writing prospectuses, if any, listed in Schedule II hereto are Permitted Free Writing Prospectuses.
(f) The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of the Common Stock, the Company's 9.25% Series A Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A Preferred Stock”), the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”), the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share (the “Series C Preferred Stock”), and the Series D Preferred Stock on the NYSE, and there are no actions, suits or proceedings pending or, to the knowledge None of the Company and the Operating Partnership, threatened or contemplated, and the Company nor any of its affiliates has not received any notice from the NYSE regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock from the NYSE.
(g) To the knowledge of the Company, there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement other than those that are so filed.
(h) To the knowledge of the Company and the Operating Partnership, there are no affiliations or associations between (i) engaged in any member of Testing the Financial Industry Regulatory Authority, Inc. Waters Communication (“FINRA”), and (iias defined below) the Company or any of the Company’s officers, directorsother than through, or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of the Prospectusas disclosed to, except as has been disclosed to the Representatives in writing.
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent authorized anyone other than the Representatives to engage in Testing the Waters Communications; the Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing the Waters Communications. “Testing the Waters Communication” means any oral or materially interfere written communication with consummation potential investors undertaken in reliance on Section 5(d) of the transactions contemplated hereby (Securities Act. Except through, or as disclosed to, the occurrence of any such effectRepresentatives, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(j) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws none of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct Company nor any of its business or its ownership or leasing of property requires such qualification, except to affiliates has distributed any Written Testing the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Each “significant subsidiary” Waters Communications (as defined in Rule 1-02(w) of Regulation S-X) of below). “Written Testing the Company other than Waters Communications” means any Testing the Operating Partnership (each Waters Communication that is a “Subsidiarywritten communication” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. All of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary are owned by the Company or the Operating Partnership directly or indirectly, free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) 405 under the Securities Act; no individual Written Testing the Waters Communication, when considered together with the Disclosure Package, included any untrue statement of Regulation S-X.
(l) The Company has a material fact or omitted to state any material fact necessary in order to make the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all corporate action required to be taken for statements therein, in the due and proper authorization, execution and delivery by it of this Agreement and consummation by it light of the transactions contemplated hereby have been duly and validly takencircumstances under which they were made, not misleading.
(m) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(n) The Articles Supplementary to the Company’s Amended and Restated Articles of Incorporation setting forth the terms of the Series D Preferred Stock (the “Articles Supplementary”) have been duly authorized and duly executed by the Company and accepted for record with the Maryland State Department of Assessments and Taxation (the “SDAT”).
(o) The statements in the Registration Statement and the Prospectus under the captions “Description of Common and Preferred Stock,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “Plan of Distribution” insofar as such statements summarize agreements, documents or governmental proceedings discussed therein, are accurate, complete and fair summaries of such agreements, documents or governmental proceedings in all material respects.
(p) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus, including OP Units or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(q) The Common Stock and the Series D Preferred Stock conform and will conform as to legal matters to the descriptions thereof contained in the Registration Statement and the Prospectus under the caption “Description of Common and Preferred Stock.”
(r) Except as described in the Registration Statement 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, units of partnership interest in the Operating Partnership (“OP Units”) or other ownership interests in the Operating Partnership are outstanding.
(s) Except as described in the Registration Statement 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.
(t) The Placement Shares to be sold by the Company have been duly authorized and, when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Placement Shares will not be subject to or in violation of any preemptive or similar rights. Upon payment of the purchase price and issuance and delivery of the Placement Shares to be issued and sold by the Company in accordance herewith, the purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear of all Liens. The certificates, if any, to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to, or incorporated by reference in, the Registration Statement and will be in proper form and will comply in all material respects with all applicable legal requirements, the requirements of the Articles of Amendment and Restatement, as amended or supplemented through the date hereof (the “Charter”), and Bylaws, as amended, of the Company and the requirements of the NYSE.
(u) The shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to
Appears in 1 contract