Conditions of U. S. Underwriters' Obligations. The obligations of the U.S. Underwriters hereunder are subject to the accuracy in all material respects, as of the date hereof and at Closing Time, of the representations and warranties of the Company herein contained, to the performance by the Company of its obligations hereunder, and to the following further conditions: (a) The Registration Statement shall have become effective not later than 5:30 P.M., New York City time, on the date hereof, or with the consent of the Representatives, at a later time and date, not later, however, than 5:30 P.M., New York City time, on the first business day following the date hereof, or at such later time and date as may be approved by a majority in interest of the U.S. Underwriters; and at the Closing Time, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission or any state securities regulatory authority. If the Company has elected to rely upon Rule 430A and/or Rule 434 of the 1933 Act Regulations, (A) the price of the Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A and/or Rule 434 shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period and (B) prior to the Closing Time, the Company shall have provided evidence satisfactory to the Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A and/or Rule 434 of the 1933 Act Regulations and shall have become effective not later than 5:30 p.m., New York City time, on the Representation Date or, with the consent of the Representatives, at a later time and date, not later, however, than 5:30 p.m., New York City time, on the first business day following the Representation Date, or of such later date and time as shall have been approved by a majority in interest of the Representatives. If a Rule 462(b) Registration Statement is required, such Rule 462(b) Registration Statement shall have been transmitted to the Commission for filing and have become effective within the prescribed time period, and, prior to the Closing Time, the Company shall have provided to the U.S. Underwriters evidence of such filing and effectiveness in accordance with Rule 462(b) of the 1933 Act Regulations. (b) At Closing Time the Representatives shall have received: (1) The favorable opinion of Jone▇ ▇▇▇, in form and substance reasonably satisfactory to counsel for the U.S. Underwriters, dated as of the Closing Time, with respect to the matters set forth below: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania with the requisite power and authority to own or lease its properties and conduct its business as described in the Prospectus, and the Company has the requisite power and authority to enter into and perform its obligations under the other Company Documents to which it is a party. (ii) The Company has the authorized and outstanding capital as set forth under the caption "Capitalization" in the Prospectus, and the authorized capital of the Company, including the Securities, conforms in all material respects to the description thereof set forth under the caption "Description of Capital Stock" in the Prospectus. All the issued and outstanding shares of Common Stock of the Company has been duly authorized and are validly issued, fully paid and non-assessable. To the knowledge of such counsel, no shares of the capital stock of the Company are reserved for any purpose except as described in the Prospectus. To the knowledge of such counsel, except as described in the Prospectus and other than as provided in this Agreement, there are no outstanding securities convertible into or exchangeable for any capital shares of the Company and no outstanding options, rights (preemptive or otherwise) or warrants to purchase or to subscribe for shares of such stock or any other securities of the Company. (iii) The Securities have been duly authorized for issuance and sale to the U.S. Underwriters and, when issued and paid for in accordance with this Agreement and the U.S. Pricing Agreement, will be validly issued, fully paid and non-assessable. The issuance of the Securities is not subject to any preemptive or other similar rights (other than pursuant to the Registration Rights Agreement and the Stockholders' Agreements) arising under the Pennsylvania Business Corporation Law, the Articles of Incorporation or the by-laws of the Company, or any agreement to which the Company is a party of which such counsel is aware. (iv) Each of this Agreement and the U.S. Pricing Agreement has been duly and validly authorized, executed and delivered by the Company. (v) The execution and delivery of each of this Agreement and the U.S. Pricing Agreement, and the performance by the Company of its obligations set forth herein or therein do not and will not conflict with or constitute a breach or violation of, or default under: (1) any other Company Document; (2) any other contract or agreement filed as an exhibit to the Registration Statement; (3) its articles of incorporation or by-laws of the Company or (4) any law, rule or administrative regulation applicable to the Company of any governmental authority or agency of the United States or the Commonwealth of Pennsylvania (except no opinion need be expressed as to the by-laws or rules of the NASD or any state securities or real estate syndication laws); or (5) any order or decree of any court or governmental authority of which such counsel is aware, except in each case for conflicts, breaches, violations or defaults that, individually or in the aggregate, would not have a Material Adverse Effect. (vi) The Company is not an "investment company" or a person "controlled by" an "investment company" within the meaning of the 1940 Act. (vii) No authorization, approval, consent or order of any federal or state court or governmental authority or agency is required in connection with the offering, issuance or sale of the Securities hereunder, in each case, except such as may be required in connection with the sale of the Securities under the 1933 Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the by-laws and rules of the NASD, or state securities laws, real estate syndication laws or such as have been received prior to the date of such opinion. (viii) At the time the Registration Statement became effective, the Registration Statement (other than the operating statistics, financial statements and other financial data included therein or omitted therefrom, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (ix) To such counsel's knowledge, there is no litigation or governmental proceeding pending or threatened against the Company, any of its Subsidiaries or any Hotel which would affect the subject matter of this Agreement or is required to be described in the Prospectus which is not so described. (x) The statements in the Prospectus under "Business and Properties- -Operations," "Management" and "Certain Relationships and Related Transactions," insofar as they purport to summarize the provisions of documents referred to therein, and the statements in the Prospectus under "Description of Capital Stock," "Shares Eligible for Future Sale" and "Taxation," insofar as they purport to summarize the provisions of documents or matters of law referred to therein or constitute legal conclusions are accurate in all material respects.
Appears in 1 contract
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The obligations of the U.S. Underwriters hereunder are subject to the accuracy in all material respectsaccuracy, as of the date hereof and at Closing Time, of the representations and warranties of the Company and the Operating Partnership herein contained, to the performance by the Company and the Operating Partnership of its their respective obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later than 5:30 P.M., New York City time, on the date hereof, or with the consent of the Representatives, at a later time and date, not later, however, than 5:30 P.M., New York City time, on the first business day following the date hereof, or at such later time and date as may be approved by a majority in interest of the U.S. Underwriters; and at the At Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission or any state securities regulatory authority. If Commission; (ii) if the Company or the Operating Partnership, as the case may be, has elected to rely upon Rule 430A and/or Rule 434 of the 1933 Act Regulations, (A) the public offering price of and the Securities interest rate on the U.S. Underwritten Securities, as the case may be, and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A and/or Rule 434 shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period period, and (B) prior to the applicable Closing Time, the Company or the Operating Partnership, as the case may be, shall have provided evidence satisfactory to the Representatives of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A and/or Rule 434 of the 1933 Act Regulations Regulations; (iii) if Preferred Stock is being offered, the rating assigned by any nationally recognized statistical rating organization as of the date of the applicable U.S. Terms Agreement shall not have been lowered since such date nor shall any such rating organization have publicly announced that it has placed the Preferred Stock on what is commonly termed a "watch list" for possible downgrading; (iv) the rating assigned by any nationally recognized statistical rating organization to any long-term debt securities of the Operating Partnership as of the date of the applicable U.S. Terms Agreement shall not have been lowered since such date nor shall any such rating organization have publicly announced that it has placed any long-term debt securities of the Operating Partnership on what is commonly termed a "watch list" for possible downgrading; and (v) there shall not have become effective not later than 5:30 p.m.come to the attention of the Representatives any facts that would cause the Representatives to believe that the U.S. Prospectus, New York City together with the applicable Prospectus Supplement, at the time it was required to be delivered to purchasers of the U.S. Underwritten Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, on the Representation Date or, with the consent of the Representatives, at a later time and date, not later, however, than 5:30 p.m., New York City time, on the first business day following the Representation Date, or of such later date and time as shall have been approved by a majority in interest of the Representativesmisleading. If a Rule 462(b) Registration Statement is required, such Rule 462(b) Registration Statement shall have been transmitted to the Commission for filing and have become effective within the prescribed time period, and, prior to the Closing Time, the Company and the Operating Partnership shall have provided to the U.S. Underwriters evidence of such filing and effectiveness in accordance with Rule 462(b) of the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion opinion, dated as of JoneClosing Time, of Bose ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for each of the Company and the Operating Partnership and their respective subsidiaries in form and substance reasonably satisfactory to counsel for the U.S. Underwriters, dated as of the Closing Time, with respect to the matters set forth beloweffect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing duly organized and existing under and by virtue of the laws of the Commonwealth State of Pennsylvania Indiana, has filed its most recent annual report required by law with the requisite Secretary of State of Indiana or is not yet required to file such annual report, and has not filed Articles of Dissolution. The Company has corporate power and authority to own conduct the business in which it is engaged or proposes to engage and to own, lease and operate its properties and conduct its business as described in the Prospectus, U.S. Prospectus and the Company has the requisite power and authority to enter into and perform its obligations under this Agreement and the other Company Documents agreements to which it is a party. The Company is duly qualified as a foreign corporation to transact business and is in good standing 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 Company or any Property.
(ii) The Company Operating Partnership is a limited partnership duly organized and existing under and by virtue of the laws of the State of Indiana. The Operating Partnership has partnership power and authority to conduct the business in which it is engaged and proposes to engage and to own, lease and operate its properties as described in the U.S. Prospectus and to enter into and perform its obligations under this 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 each jurisdiction in which such qualification or registration is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or register would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Operating Partnership or any Property or Related Business.
(iii) Each of the Company's and the Operating Partnership's subsidiaries (other than the Property Partnerships) 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 U.S. Prospectus.
(iv) Each of the Company's and the Operating Partnership's 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.
(v) If the applicable U.S. Underwritten Securities are issued by the Company, and outstanding capital as set forth under if the U.S. Prospectus contains the caption "Capitalization," the capital stock of the Company is as set forth in the Prospectus, and the authorized capital of the Company, including the Securities, conforms in all material respects to the description thereof set forth column entitled "Historical" under the caption "Description of Capital Stock" in the Prospectussuch caption. All the issued and outstanding shares of Common Stock of the Company has capital stock have been duly authorized and are validly issued, fully paid and non-assessable. To the knowledge best of such counsel's knowledge, after due inquiry, no shares of the capital stock of the Company are reserved for any purpose except as described in connection with stock option and dividend reinvestment plans and the Prospectuspossible issuance of shares of Common Stock upon the exchange of Units. To the knowledge best of such counsel's knowledge after due inquiry, except as described in the Prospectus and other than as provided in this Agreementfor Units, there are no outstanding securities convertible into or exchangeable for any capital shares stock of the Company Company, and except for options under a stock option plan, there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or to subscribe for shares of such stock or any other securities of the Company.
(iiivi) The Securities All the issued and outstanding Units have been duly authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code Section 23-16-7-8.
(vii) All of the issued and outstanding shares of capital stock and partnership interests, as the case may be, of each subsidiary identified in an exhibit to such counsel's opinion have been validly issued and fully paid and all such shares and partnership interests, as the case may be, that are owned by the Company, the Operating Partnership or a subsidiary, are in each case owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(viii) 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 a limited liability company under of the laws of its jurisdiction of organization; each Property Partnership has all requisite power and authority to own, lease and operate the 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.
(ix) The applicable U.S. Underwritten Securities, if such U.S. Underwritten Securities are Common Stock, Preferred Stock or Depositary Shares, have been duly authorized by the Company for issuance and sale to the U.S. Underwriters pursuant to this Agreement, and, when issued and paid for in accordance with delivered by the Company, pursuant to this Agreement and the applicable U.S. Pricing AgreementTerms Agreement against payment of the consideration set forth in the U.S. Terms Agreement or any Delayed Delivery Contract, will be validly issued, fully paid and non-assessable. Upon payment of the purchase price and delivery of such U.S. Underwritten Securities in accordance herewith, each of the U.S. Underwriters will receive good, valid and marketable title to such U.S. Underwritten Securities, which to such counsel's knowledge, after due inquiry, are free and clear of all security interests, mortgages, pledges, liens, encumbrances, claims and equities. The terms of the applicable U.S. Underwritten Securities conform to all statements and descriptions related thereto contained in the U.S. Prospectus. The form of stock or depositary certificate to be used to evidence the applicable U.S. Underwritten Securities is in due and proper form and complies with all applicable legal requirements. The issuance of the applicable U.S. Underwritten Securities is not subject to any preemptive or other similar rights.
(x) The applicable U.S. Underwritten Securities, if such U.S. Underwritten Securities are Debt Securities, are in the form contemplated in the Indenture, have been duly authorized by the Operating Partnership for issuance and sale to the U.S. Underwriters pursuant to this Agreement and, when executed, authenticated, issued and delivered in the manner provided for in this Agreement, the applicable U.S. Terms Agreement and the applicable Indenture, against payment of the consideration therefor specified in the applicable U.S. Terms Agreement or any Delayed Delivery Contract, such Debt Securities will constitute valid and legally binding obligations of the Operating Partnership entitled to the benefits of the Indenture and such Debt Securities will be enforceable against the Operating Partnership in accordance with their terms, except as such enforceability may be (1) limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws affecting the rights and remedies of creditors generally and (2) subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Upon payment of the purchase price and delivery of such U.S. Underwritten Securities in accordance herewith, each of the U.S. Underwriters will receive good, valid and marketable title to such U.S. Underwritten Securities, which to such counsel's knowledge, after due inquiry, are free and clear of all security interests, mortgages, pledges, liens, encumbrances, claims and equities. The terms of the applicable U.S. Underwritten Securities conform to all statements and descriptions related thereto in the U.S. Prospectus. Such U.S. Underwritten Securities rank and will rank on a parity with all unsecured indebtedness (other than pursuant subordinated indebtedness of the Operating Partnership that is outstanding on the Representation Date or that may be incurred thereafter) and senior to all subordinated indebtedness of the Operating Partnership that is outstanding on the Representation Date or that may be incurred thereafter, except that such U.S. Underwritten Securities will be effectively subordinated to the Registration Rights Agreement prior claims of each secured mortgage lender to any specific Property which secures such lender's mortgage.
(xi) If applicable, the Common Stock issuable upon conversion of any of the Preferred Stock (including Preferred Stock represented by Depositary Shares) will have been duly and validly authorized and reserved for issuance upon such conversion or exercise by all necessary action and such stock, when issued upon such conversion or exercise, will be duly and validly issued, fully paid and non-assessable, and the Stockholders' Agreementsissuance of such stock upon such conversion or exercise will not be subject to preemptive or other similar rights; the Common Stock so issuable conforms in all material respects to all statements relating thereto contained in the U.S. Prospectus.
(xii) arising under To the Pennsylvania Business Corporation Lawbest knowledge of such counsel, none of the Articles entities comprising the Duke Group is in violation of Incorporation or the its charter, by-laws laws, certificate of limited partnership or partnership agreement, as the case may be, and none of the Companyentities comprising the Duke Group is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreement contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company such entity is a party of or by which such counsel entity may be bound, or to which any of the property or assets of such entity is awaresubject, except for defaults which are not material to the Duke Group as a whole.
(ivxiii) Each of this Agreement, the applicable U.S. Terms Agreement and the U.S. Pricing Agreement Delayed Delivery Contracts, if any, were duly and validly authorized, executed and delivered by the Company and the Operating Partnership, as applicable, and the Company and the Operating Partnership have the power and authority to perform their obligations hereunder and thereunder.
(xiv) The Indenture has been duly qualified under the 1939 Act and has been duly and validly authorized, executed and delivered by the CompanyOperating Partnership, and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and binding obligation of the Operating Partnership, enforceable in accordance with its terms, except as such enforceability may be (1) limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws affecting the rights and remedies of creditors generally and (2) subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture conforms in all material respects to the descriptions thereof contained in the U.S. Prospectus.
(vxv) Each of the partnership agreements to which any of the Company, the Operating Partnership or their respective subsidiaries identified in an exhibit to such counsel's opinion is a party has been duly authorized, executed and delivered by such party and constitutes a valid and binding obligation thereof, enforceable in accordance with its terms, except as such enforceability may be (1) limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws affecting the rights and remedies of creditors generally and (2) subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(xvi) The execution and delivery of each of this Agreement Agreement, the applicable U.S. Terms Agreement, any Indenture and the U.S. Pricing AgreementUnderwritten Securities, and the performance by of the Company of its obligations set forth herein or therein do not and will not conflict with or constitute a breach or violation of, or default under: (1) any other Company Document; (2) any other contract or agreement filed as an exhibit to the Registration Statement; (3) its articles of incorporation or by-laws of the Company or (4) any law, rule or administrative regulation applicable to the Company of any governmental authority or agency of the United States or the Commonwealth of Pennsylvania (except no opinion need be expressed as to the by-laws or rules of the NASD or any state securities or real estate syndication laws); or (5) any order or decree of any court or governmental authority of which such counsel is aware, except in each case for conflicts, breaches, violations or defaults that, individually or in the aggregate, would not have a Material Adverse Effect.
(vi) The Company is not an "investment company" or a person "controlled by" an "investment company" within the meaning of the 1940 Act.
(vii) No authorization, approval, consent or order of any federal or state court or governmental authority or agency is required in connection with the offering, issuance or sale of the Securities hereunder, in each case, except such as may be required in connection with the sale of the Securities under the 1933 Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the by-laws and rules of the NASD, or state securities laws, real estate syndication laws or such as have been received prior to the date of such opinion.
(viii) At the time the Registration Statement became effective, the Registration Statement (other than the operating statistics, financial statements and other financial data included therein or omitted therefrom, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(ix) To such counsel's knowledge, there is no litigation or governmental proceeding pending or threatened against the Company, any of its Subsidiaries or any Hotel which would affect the subject matter of this Agreement or is required to be described in the Prospectus which is not so described.
(x) The statements in the Prospectus under "Business and Properties- -Operations," "Management" and "Certain Relationships and Related Transactions," insofar as they purport to summarize the provisions of documents referred to therein, and the statements consummation of the transactions contemplated hereby and thereby or in the U.S. Prospectus under "Description of Capital Stock," "Shares Eligible for Future Sale" by the Company and "Taxation," insofar as they purport to summarize the provisions of documents or matters of law referred to therein or constitute legal conclusions are accurate in all material respects.Operating Partnership, will no
Appears in 1 contract
Sources: Form 8 K