Representations and Warranties of the Company and the Operating Partnership Sample Clauses: 716 Samples

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, 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 not~~contained, ~~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, ~~however~~as 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 ~~Statement~~Statement 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)(2~~401(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 (ii~~Act) 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,~~ 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) hereof~~20(a).): (A) At the ~~original effectiveness~~ time of filing the Registration ~~Statement~~Statement 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 Commission~~Statement, 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 Date~~under 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 thereto~~each 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 conflicted~~not, ~~conflicts or will conflict with the information contained in the Registration Statement or the Prospectus~~at such times, ~~including any document incorporated by reference therein that has not been superseded or modified and~~as 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 ~~Information~~for 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 ~~Effect~~Change”); 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 ~~rights~~right. 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 Agreement~~Other 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 “~~Charter~~OP Units”~~), and Bylaws, as amended,~~ ) equal to the number of ~~the Company and the requirements of the NYSE~~Placement 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 Supplementary~~payment 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 to~~reasonably 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, 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 Statement~~Securities 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(c~~415(a)(1)(x) under the ~~Securities Act~~Act 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 ~~405~~462(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 Commission~~Prospectus 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 made~~the Securities Exchange Act of 1934, ~~not misleading; provided~~as amended, ~~however, that the Company~~ and the ~~Operating Partnership make no representation~~ rules and ~~warranty with respect to any Agent Information. The documents incorporated~~regulations promulgated thereunder (the “Exchange Act”), which is or is deemed to be ~~incorporated,~~ incorporated by reference in the Registration ~~Statement and~~ Statement, the ~~Prospectus~~Rule 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 ~~NYSE~~Shares 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 ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~successor 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 thereto~~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~~. 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 ~~Prospectus~~Prospectus 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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 405~~viii) 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 effect~~kind declared, ~~prevention~~paid 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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 Prospectus~~Statement, 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 ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~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, ~~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 thereto~~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~~. 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 ~~Prospectus~~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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 issuer~~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, 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 405~~viii) 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 effect~~kind declared, ~~prevention~~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, ~~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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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. 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 not~~contained, ~~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)(2~~424(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 Prospectus~~Each 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 ~~comply~~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 ~~all respects~~ reliance upon and in conformity with written information furnished to the ~~requirements of~~ Company by the ~~Exchange Act~~Manager 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 (ii~~Act) 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 ~~405~~405 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 Prospectus~~Statement. (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 limitation~~Act (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 ~~incorporated~~organized, 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 qualification~~or 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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or on the earnings, properties, ~~management~~assets, ~~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 indirectly~~Partnership, 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 ~~for~~convertible 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 ~~NYSE~~Series 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 Supplementary~~properties of the Company, ~~will be validly issued~~the Operating Partnership or the Subsidiaries or, ~~fully paid and nonassessable~~except 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. (a) The Company and the Operating ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~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, ~~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 thereto~~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~~. 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 ~~Prospectus~~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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 issuer~~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, 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 405~~viii) 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 effect~~kind declared, ~~prevention~~paid 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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 Prospectus~~condition, ~~no options, warrants~~ financial or ~~other rights to purchase, agreements or other obligations to issue~~otherwise, 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 Agreement~~Underwriter 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 incorporated~~registration statement, ~~or to be incorporated~~as 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 Effect~~Registration 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 Stock~~Act.” (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~~ 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 hereof~~Closing 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 Partnership~~Company, 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 ~~hereof~~hereof 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 thereto~~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. (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 incorporated~~Underwriter 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 Act~~Section 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 (ii~~Act) ~~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~~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~~ considered together with the ~~Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus~~Time 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 ~~NYSE~~Notes 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 ~~Maryland~~its 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 ~~assets~~condition, business, ~~condition (financial or otherwise), earnings,~~ properties, ~~management~~assets, 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. 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 405~~Act”), 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 405~~below), 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 hereof~~Act, ~~and~~ as such section applies to the Manager, as well as any new registration statement, post-effective amendment ~~thereto~~or 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)(2~~424(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 therein~~second 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 ~~NYSE~~Prospectus Supplement. Notwithstanding the foregoing, ~~including~~if 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~~ Each of the Company and QualityTech, LP, a Delaware limited partnership (the “Operating Partnership, ”) jointly and ~~severally~~severally represents, ~~represent~~ warrants and ~~warrant~~ covenants to the ~~Agent that~~ Underwriter, as of the date ~~hereof~~of this Agreement, as of ~~each Representation~~ the First Closing Date (as ~~defined below~~hereinafter 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 Agreement~~Option 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 Date~~date, 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)(2~~433(d) ~~and at each Settlement Date~~under 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 ~~Prospectus~~free 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 and~~referred 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 NYSE~~related 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 ~~Company~~Company 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 effect~~periods presented; the supporting schedules, ~~prevention~~if 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 organized~~Partnership’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 lease~~its 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 ~~aggregate~~Registration 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 subsidiary~~non-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 organized~~Underwriter, 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~~free writing prospectuses, ~~limited partnership or limited liability company~~if 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 “~~Charter~~Bylaws”~~), 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 Supplementary~~Operating 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 nonassessable~~made 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 to~~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 o

Appears in 2 contracts

Sources: Underwriting Agreement (QualityTech, LP), Underwriting Agreement (QualityTech, LP)

Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating ~~Partnership~~Partnership 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 thereto~~to 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 Date~~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 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 thereto~~Date 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 ~~Prospectus~~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 not~~and, ~~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 ~~contemplated~~by 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 ~~Company~~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, ~~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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 effect~~kind declared, ~~prevention~~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, ~~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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 authorization~~90% 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 taken~~a 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 authorization~~affiliates, ~~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 issuances~~below, 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 ~~options~~outstanding rights, warrants or ~~other rights~~ options to ~~purchase~~acquire, or instruments convertible into or exchangeable for, or agreements or ~~other obligations~~ understandings with respect to ~~issue~~the 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 outstanding~~is 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 Agreement~~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 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. (a) The Company and the Operating ~~Partnership~~Partnership 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 thereto~~to 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 Date~~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 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 thereto~~Date 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 ~~Prospectus~~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 not~~and, ~~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 ~~contemplated~~by 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 ~~Company~~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, ~~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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 ~~lease~~in 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 qualification~~or 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 authorization~~90% 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 taken~~a 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 Prospectus~~transactions in connection with dividend reinvestment plans, and stock option and other employee benefit plans, there are no ~~options~~outstanding rights, warrants or ~~other rights~~ options to ~~purchase~~acquire, or instruments convertible into or exchangeable for, or agreements or ~~other obligations~~ understandings with respect to ~~issue~~the 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 outstanding~~Company, 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 Agreement~~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~~ such Underwritten Securities in accordance herewith, each of the ~~purchasers thereof~~ Underwriters will receive good, valid and marketable title to such ~~Placement Shares~~Underwritten Securities, free and clear of all ~~Liens~~security 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 to~~applicable 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 ~~Partnership~~Partnership 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 thereto~~to 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 Date~~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 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 thereto~~Date 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 ~~Prospectus~~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 not~~and, ~~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 ~~contemplated~~by 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 ~~Company~~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, ~~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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 effect~~kind declared, ~~prevention~~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, ~~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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 authorization~~90% 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 taken~~a 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 authorization~~other 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 issuances~~below, 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 ~~options~~outstanding rights, warrants or ~~other rights~~ options to ~~purchase~~acquire, or instruments convertible into or exchangeable for, or agreements or ~~other obligations~~ understandings with respect to ~~issue~~the 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 outstanding~~is 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 Agreement~~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~~ such Underwritten Securities in accordance herewith, each of the ~~purchasers thereof~~ Underwriters will receive good, valid and marketable title to such ~~Placement Shares~~Underwritten 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. ~~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 hereof~~Additional 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 Agreement~~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 (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 Partnership~~Company, 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 ~~hereof~~hereof 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 thereto~~Additional 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 incorporated~~Underwriter 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 Act~~Section 15 hereof. (df) ~~Other than the Registration Statement and the Prospectus~~The 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 ~~prepare~~at 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 Information~~Underwriter 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 issuer~~road 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 Prospectus~~circumstances 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 writing~~Securities 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 ~~incorporated~~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). (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 ~~Maryland~~its 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 ~~assets~~condition, business, ~~condition (financial or otherwise), earnings,~~ properties, ~~management~~assets, 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 outstanding~~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. (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 Agreement~~consideration set forth herein, will be validly issued, fully paid and ~~non-assessable~~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 ~~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 ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~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, ~~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 thereto~~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~~. 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 ~~Prospectus~~Prospectus 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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 issuer~~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, 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 405~~viii) 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 effect~~kind declared, ~~prevention~~paid 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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 Prospectus~~condition, ~~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 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 405~~Act”), 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 405~~below), 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 hereof~~Act, ~~and~~ as such section applies to the Manager, as well as any new registration statement, post-effective amendment ~~thereto~~or 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)(2~~424(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 therein~~second 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 agreements~~used 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 ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~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, ~~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 thereto~~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~~. 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 ~~Prospectus~~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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 issuer~~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, 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 405~~viii) 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 effect~~kind declared, ~~prevention~~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, ~~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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 authorization~~90% 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 taken~~a 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~~ 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 hereof~~Additional 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 Agreement~~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 (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 Partnership~~Company, 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 ~~hereof~~hereof 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 thereto~~Additional 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 incorporated~~Underwriter 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 Act~~Section 15 hereof. (df) ~~Other than the Registration Statement and the Prospectus~~The 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 ~~prepare~~at 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 Information~~Underwriter 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 issuer~~road 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 Prospectus~~circumstances 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 writing~~Securities 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 ~~incorporated~~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). (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 ~~Maryland~~its 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 ~~assets~~condition, business, ~~condition (financial or otherwise), earnings,~~ properties, ~~management~~assets, 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 Agreement~~extent that such enforceability may be limited by applicable bankruptcy, ~~will be validly issued~~insolvency, ~~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 ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~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, ~~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 thereto~~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~~. 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 ~~Prospectus~~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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 issuer~~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, 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 405~~viii) 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 effect~~kind declared, ~~prevention~~paid 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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 Prospectus~~condition, ~~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 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 Agreement~~Manager, 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 Partnership~~Company, 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 Act~~Manager 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 (ii~~Act) ~~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 ~~incorporated~~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 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 ~~Maryland~~its 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 ~~assets~~condition, business, ~~condition (financial or otherwise), earnings,~~ properties, ~~management~~assets, 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. (~~iii~~n) ~~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 options~~have 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 outstanding~~Partnership. (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 Agreement~~the 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 ~~and~~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, ~~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 Supplementary~~Company 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 to~~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 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 ~~Partnership~~Partnership 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 thereto~~to 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 Date~~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 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 thereto~~Date 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 ~~Prospectus~~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 not~~and, ~~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 ~~contemplated~~by 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 ~~Company~~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, ~~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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 ~~lease~~in 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 qualification~~or 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 authorization~~90% 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 taken~~a 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 issuances~~below, 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 ~~options~~outstanding rights, warrants or ~~other rights~~ options to ~~purchase~~acquire, or instruments convertible into or exchangeable for, or agreements or ~~other obligations~~ understandings with respect to ~~issue~~the 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 outstanding~~is 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 Agreement~~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 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 Agreement~~case 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 ~~Commission~~Securities 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 Partnership~~Company, ~~threatened~~ are contemplated by the Commission~~. The Registration Statement, as of the date hereof~~, and any ~~post-effective amendment thereto~~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 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 Date~~of 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, ~~however~~as 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 ~~Prospectus~~Prospectus 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 thereby~~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 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 ~~purchase~~subscribe 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 Shares~~the Shares being sold by the Company, free and clear of ~~all Liens~~any 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 to~~limited 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. 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 the ~~time of each sale of any Placement Shares pursuant to this Agreement~~case 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~~) and 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~~Shares, the Company was ~~and is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act (“Rule 405”))~~eligible to use Form S-3 to register primary offerings of securities pursuant to General Instruction I.B.1 of such form. (cb) 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 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 Partnership~~Company, ~~threatened~~ are contemplated by the Commission~~. The Registration Statement, as of the date hereof~~, and any ~~post-effective amendment thereto~~request on the part of the Commission for additional information has been complied with. (c) 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. (d) 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 Date~~of 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 in conformity with written information relating to CF&Co furnished to the Company in writing by CF&Co expressly for use therein, it being understood and agreed that the only such information furnished by CF&Co consists of the information described as such in Schedule 4 hereto. (e) 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, each Applicable Time, 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, ~~however~~as amended or supplemented, in reliance upon and in conformity with written information relating to CF&Co furnished to the Company in writing by CF&Co expressly for use therein, it being understood and agreed that the ~~Company and~~ only such information furnished by CF&Co consists of the ~~Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated,~~ information described as such in Schedule 4 hereto. (f) Each document incorporated by reference in the Registration Statement ~~and~~ or the ~~Prospectus~~Prospectus 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 thereby~~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 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) Each issuer free writing prospectus (as defined in Rule 433), as of its issue date and at all subsequent times through the completion of the public offer and sale of the Shares or until any earlier date that the Company notifies CF&Co in writing, 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 written information furnished to 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 Company by CF&Co specifically for use therein, in it being understood and agreed that the ~~light~~ only such information furnished by CF&Co consists 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” (information described as ~~defined~~ such 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 filedSchedule 4 hereto. (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” of the Company (as such term is defined in Rule 1-~~02(w)~~ 02 of Regulation S-X) ~~of the Company other than the Operating Partnership~~ (each a “Subsidiary” ~~and collectively~~ 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 the laws of ~~the~~ its respective jurisdiction of ~~its~~ organization, has ~~the full~~ power and authority to ~~own or lease~~own, ~~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 the~~ Prospectus and is duly qualified as a foreign corporation, partnership or limited liability company 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 such qualification is required, whether by reason of the ~~conduct of its business or its~~ ownership or leasing of property ~~requires such qualification~~or the conduct of business, except ~~to the extent that~~ where the failure so to ~~be so qualified~~ qualify or to be in good standing would not ~~have~~ result in 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 ; 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~~Statement, all of the issued and outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital ~~stock~~stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only subsidiaries of the Company are (a) the subsidiaries listed on Exhibit 21.1 to the Company’s annual report on Form 10-K for the year ended December 31, 2005 (and subsidiaries formed subsequent thereto) and (b) certain other subsidiaries which, considered in the aggregate as a single Subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X. The Company is the sole general partner of the Operating Partnership and holds such number and/or percentage of units of limited partnership interest ~~and units of membership interest of each Subsidiary are owned by the Company or~~ in the Operating Partnership ~~directly or indirectly~~(“Units”) as disclosed in the Prospectus as of the dates set forth therein. The Agreement of Limited Partnership of the Operating Partnership, ~~free and clear~~ dated as of ~~all security interests~~June 25, ~~liens~~1998, ~~mortgages, encumbrances, pledges, claims or other defects of any kind~~ as amended (~~collectively,~~ the “~~Liens~~Operating Partnership Agreement”). 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 , is in full force 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 takeneffect. (mi) 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 authorizationauthorized, 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 issued and outstanding ~~capitalization~~ capital stock 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~~Agreement or otherwise, ~~(ii)~~ pursuant to reservations, ~~agreements,~~ agreements or employee benefit plans ~~or dividend reinvestment or stock purchase plans~~ referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus). The issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. All issued and outstanding Units have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold or exchanged by the Operating Partnership in compliance with all applicable laws (including, without limitation, federal and state securities laws). Except for any outstanding convertible preferred units, there are no Units reserved for any purpose and there are no outstanding securities convertible into or exchangeable for any Units and no outstanding options, rights (preemptive or otherwise) or warrants to purchase or to subscribe for Units other than as described in the Prospectus (j) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (~~iii~~A) ~~pursuant to~~ there has been no material adverse change in the ~~exercise~~condition, ~~redemption~~financial or otherwise, or ~~exchange of convertible or exchangeable securities, options or warrants referred to~~ in the ~~Registration Statement and the Prospectus~~earnings, ~~including OP Units~~ business affairs 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, business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ~~requirements~~ ordinary course of business (a “Material Adverse Effect”), (B) no casualty loss or condemnation or other adverse event with respect to any of the ~~NYSE.~~ interests held directly or indirectly in any of the real properties or real property interests, including, without limitation, any interest or participation, direct or indirect, in any mortgage obligation owned, directly or indirectly, by the Company, any of its subsidiaries or any Joint Venture (uas defined below) ~~The shares~~ (the “Properties”) has occurred which would be material with respect to the Company and its subsidiaries considered as one enterprise, (C) 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, (D) except for regular quarterly dividends on the Company’s Common Stock ~~initially issuable upon conversion of~~ in amounts per share that are consistent with past practice, dividends on the Company’s 8-7/8% Series ~~D Preferred Stock have been duly authorized and, when issued upon conversion of the Series D~~ A Cumulative Redeemable Preferred Stock in accordance with the terms thereof, and regular quarterly distributions on the common and preferred units of limited partnership interest in the Operating Partnership, 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 there has been no decrease in the capital of the ~~Articles Supplementary~~Company or any of its subsidiaries. (k) The Placement Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly ~~issued,~~ issued and fully paid and ~~nonassessable~~non-assessable; the Common Stock conforms to all statements relating thereto contained in the Prospectus and such description conforms to the rights set forth in the instruments defining the same; and the form of stock certificate evidencing the Common Stock will comply with all applicable legal requirements, with all applicable requirements of the Company’s charter and by-laws and with the requirements of the Exchange; no holder of the Common Stock will be subject to personal liability by reason of being such a holder; and the issuance of ~~such shares of~~ the Common Stock ~~will~~ is not subject to the preemptive or other similar rights of any securityholder of the Company. (l) All of the joint ventures in which the Company or any subsidiary owns an interest of greater than five percent and that are currently conducting business (the “Joint Ventures”) are listed on Schedule 5 hereto. The Company’s (or subsidiary’s, as the case may be) ownership interest in such Joint Venture is as set forth on Schedule 5. To the knowledge of the Company and the Operating Partnership, each of the Joint Ventures possesses such certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now being conducted by it, as described in the Prospectus, and none of the Joint Ventures has received notice of any proceedings relating to the revocation or modification of any such certificate, authority or permit which singly or in the aggregate, if the subject of an unfavorable ruling or decision, would have a Material Adverse Effect. (m) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of either the Company or the Operating Partnership, threatened, against or affecting the Company or any subsidiary, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which might result in a Material Adverse Effect, or which might materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their respective property or assets is the subject towhich are not described in the Registration Statement, including ordinary routine litigation incidental to the business, could not result in a Material Adverse Effect. (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 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 Common Shares as provided herein and the Operating Partnership’s issuance of the Common Units to the Company. The Company’s and the Operating Partnership’s execution and delivery of 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 t

Appears in 1 contract

Sources: Sales Agreement (Cedar Shopping Centers 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~~ Underwriters as of the date hereof, ~~as of each Representation Date (as defined below~~the Applicable Time referred to in Section 3(p) ~~on which a certificate is required to be delivered pursuant to Section 7(q)~~hereof, ~~and~~ as of the ~~time of each sale of any Placement Shares pursuant~~ Closing Time referred to ~~this Agreement~~in Section 2 hereof, that: (a) ~~No order preventing or suspending~~ (i) at the ~~use~~ time 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 initial filing of the Registration Statement, (Bii) at the time of the most recent amendment ~~thereto~~ thereto, if any, 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), ) and (Ciii) 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~~ of the Securities Act Regulations (“Rule 405”)~~). (c) The~~ , 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) , that initially became effective within three years of the date hereof, 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~~ ”; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form, and the Company has not otherwise ceased to be eligible to use the automatic shelf registration statement form; (b) the Company has an authorized capitalization of 200 million shares of common stock, par value $.01 per share (the “Common Stock”), and 50 million shares of preferred stock, par value $.01 per share (including the Series D Stock, the “Preferred Stock”) and an outstanding capitalization as set forth in the General Disclosure Package and the Prospectus; the outstanding shares of capital stock or, as applicable partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), have been duly and validly authorized and issued and are fully paid and, with respect to shares of capital stock, membership interests and limited partnership interests, non-assessable (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, except as disclosed in Exhibit A to the Agreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), all of the outstanding shares of capital stock or partnership or membership interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company, free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package (as defined below) or the Prospectus, and, except as disclosed in the General Disclosure Package and the Prospectus and pursuant to registration rights agreements entered into in connection with acquisitions disclosed in the General Disclosure Package and the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; (c) each of the Company and the Subsidiaries (all of which Subsidiaries are named in Schedule II hereto) has been duly incorporated or organized and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in the General Disclosure Package and the Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein; (d) each of the Company and the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which the nature or conduct of its business requires such qualification or license and in which the failure, individually or in the aggregate, to be so qualified or licensed could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole (a “Material Adverse Effect”); except as disclosed in the Prospectus and the General Disclosure Package, 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 or other equity interests or from repaying to the Company or any other Subsidiary any amounts that 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; other than as disclosed in the Prospectus and the General Disclosure Package, 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, joint venture or other association; (e) 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 parties thereto, 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; (i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of units of common limited partnership interest (the “Units”) representing a majority limited partnership ownership interest in the Operating Partnership and such units of preferred limited partnership interest in the Operating Partnership as described in the General Disclosure Package and the Prospectus, (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package or the Prospectus; (g) the Company and the Subsidiaries are in compliance with all applicable federal, state, local or foreign laws, regulations, rules, decrees, judgments and orders, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (h) neither the Company nor any Subsidiary 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 that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (i) the execution, delivery and performance of this Agreement and consummation of the transactions contemplated herein will not (i) 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), (A) any provision of the organizational documents of the Company or any Subsidiary, or (B) 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 Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any 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 (B) for such breaches or defaults that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (ii) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary; (j) this Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership and is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; (k) 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 any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement, their consummation of the transactions contemplated herein or the Company’s sale and delivery of the Shares, other than (i) such as have been obtained, or will have been obtained at the Closing Time, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (ii) such approvals as have been obtained in connection with the approval of the listing of the Shares on the New York Stock Exchange, (iii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Shares are being offered by the Underwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate; (l) articles supplementary to the Company’s charter establishing the terms of the Series D Stock (the “Articles Supplementary”) will be, by the Closing Time, duly authorized and executed by the Company and accepted for record by the Maryland State Department of Assessments and Taxation and effective under the Maryland General Corporation Law; (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 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 their respective businesses as described in the General Disclosure Package 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, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries 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 federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of the Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse Effect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in the General Disclosure Package and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the General Disclosure Package and the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (n) the Company and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; pursuant to Rule 462(e) of the Securities Act Regulations, the Registration Statement became effective under the Securities Act upon ~~filing with the Commission. No~~ filing; 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 Partnership~~Company, are threatened by the Commission~~. The Registration Statement~~, as and, to the knowledge of the ~~date hereof~~Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information; (o) at the respective times the Registration Statement and any post-effective ~~amendment thereto~~amendments thereto became effective, ~~as of its applicable effective date and~~ at ~~each~~ the deemed effective date with respect to ~~Agents~~ the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Regulations, at the date of this Agreement and at ~~each Settlement Date~~the Closing Time, the Registration Statement and any amendments or supplements thereto complied and will ~~comply~~ 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 the date of~~ the Prospectus and any further amendments or supplements thereto, at the time the Prospectus or such amendment or supplement ~~thereto~~was issued, at the date hereof, at the time of filing pursuant to Rule 424(b) and at the Closing Time, complied and will comply, in all material respects with the requirements of the Securities 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, 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 with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in~~ prospectus filed as part of the Registration Statement ~~and the Prospectus, at the time~~ as originally filed ~~with the Commission, complied~~ or ~~will comply, in all respects to the requirements~~ as part 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 any amendment or ~~referred to and will not prepare, use, authorize, approve~~ supplement thereto 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~~ filed pursuant to ~~Section 2(a)(10)(a)~~ Rule 424 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~~ Regulations, complied ~~and will comply~~ when so filed in all material respects with the Securities Act ~~(to~~ and the ~~extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with~~ Securities Act Regulations; at the ~~information contained in~~ earliest time after the filing of 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 or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Shares and at the ~~Operating Partnership make no representation and warranty with respect to any Agent Information. (e) The~~ date hereof, the Company was not and is 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~~ ; no offer that was a written communication relating 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, was made prior 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 toinitia

Appears in 1 contract

Sources: Underwriting Agreement (Ashford Hospitality Trust 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 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 Agreement~~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 ~~Prospectus~~Underwriters. 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(c~~434(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)(2~~462(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 ~~Agent~~Registration 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 Prospectus~~or, ~~including~~ if any ~~document incorporated by reference therein that has not been superseded or modified and~~Rule 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) hereof~~21(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 hereof~~Securities 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 thereto~~when 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 Date~~the Prospectus will, ~~complied and will~~ comply in all material respects with the applicable requirements of the Securities ~~Act~~Act 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 (ii~~Company 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 Prospectus~~Statement, 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 Information~~information 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 Prospectus~~Exchange 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 company~~partnership, 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, ~~liens~~claims, 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 outstanding~~Company. (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 Shares~~Company, 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 NYSE~~Operating 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 Supplementary~~Securities 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 to~~as have be

Appears in 1 contract

Sources: Sales Agreement (Sun 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 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 Agreement~~Settlement 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(c~~164(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 Act~~date hereof and on each Representation Date, ~~and (D)~~ as of ~~the date hereof~~each 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 statement~~offer 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 thereto~~each 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 Act~~Manager 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 (ii~~Act) ~~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 405~~the 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 NYSE~~this 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 ~~qualification~~qualification 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), ~~earnings~~business, properties, ~~management~~assets, 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 lease~~own, 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 ~~qualification~~qualification 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 ~~organization~~incorporation or formation, and each such subsidiary has the ~~full~~ requisite corporate or similar power and authority to ~~own or lease~~own, as lease and operate its properties (collectively, with the ~~case may be~~Company 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 ~~qualification~~qualification 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 ~~indirectly~~indirectly 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 taken~~securityholder 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 ~~purchase~~subscribe 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 for~~shares 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 outstanding~~Operating 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 requirements~~the 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 NYSE~~Operating 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 and~~Company 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 to~~brought, 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. 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(q~~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 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 3:45 p.m. (Eastern time) on February 8, 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~~ 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 Statement~~issue 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 meaning~~Closing Time and each Option Closing Time, ~~for this clause only~~each 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 thereby~~Final 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 filed~~Securities 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 Authority~~Representatives, ~~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 incorporated~~Preliminary 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 ~~qualification~~documents 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(w~~l) ~~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 organized~~similar rights to have any equity or debt securities, ~~is validly existing as a corporation~~including 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 ~~indirectly~~similar 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, 2020 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 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 outstanding~~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 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 ~~herewith~~with 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 Shares~~or 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~~corporate governance requirements set forth in the NYSE’s listing standards that are then in effect. (s) The Amended and Restated Management Agreement, ~~the requirements~~ dated as of ~~the Articles of Amendment and Restatement~~May 9, 2016, as amended ~~or supplemented through~~ by the ~~date hereof~~ First Amendment to the Management Agreement, dated as of December 6, 2020 (as so amended, the “~~Charter~~Management Agreement”), pursuant to which the Manager acts as the manager and ~~Bylaws~~adviser of the Company, the Operating Partnership and their respective Subsidiaries, has been duly authorized, executed and delivered by each of the Company, the Operating Partnership and their respective Subsidiaries, as ~~amended~~applicable, and constitutes a valid and binding agreement of each of the ~~Company~~ Company, the Operating Partnership 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 their respective Subsidiaries enforceable in accordance with its terms, except 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 to~~e

Appears in 1 contract

Sources: Underwriting Agreement (Ready Capital Corp)

Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating ~~Partnership,~~ Partnership (as hereinafter defined) 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 AgreementUnderwriter that: (a) A registration statement on Form S-3 (File No. 333-34263), with respect to the Shares, including a prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations (the "1933 Act Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, has been filed with the Commission and has been declared effective. Such registration statement and prospectus may have been amended or supplemented prior to the date of this Underwriting Agreement; any such amendment or supplement was so prepared and filed, and any such amendment filed after the effective date of such registration statement has been declared effective. No stop order ~~preventing or~~ suspending the ~~use~~ effectiveness of ~~the Prospectus~~ such registration statement has been ~~issued~~ issued, and no proceeding for that purpose has been instituted or threatened by the Commission. A prospectus supplement (the "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Shares and additional information concerning the Company and its business has been or will be so prepared and will be filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations on or before the second business day after the date hereof (or such earlier time as may be required by the 1933 Act Rules and Regulations). Copies of such registration statement and prospectus, any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Underwriting Agreement (including one fully executed copy of the registration statement and of each amendment thereto for the Underwriter and its counsel) have been delivered to the Underwriter and Underwriter's counsel. The registration statement, as it may have heretofore been amended, is referred to herein as the "Registration Statement," and the final form of prospectus included in the Registration Statement, as supplemented by the Prospectus Supplement, is referred to herein as the "Prospectus." Any reference herein to the Registration Statement, the Prospectus, ~~as of its date and as of the date of~~ any preliminary prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement, the Prospectus or any preliminary prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Underwriting Agreement, all references to the Registration Statement, the Prospectus, any preliminary prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System (EDGA▇), ▇nd such copy shall be identical in content to any Prospectus delivered to the Underwriter for use in connection with the offering of the Shares. (b) The Company and the transactions contemplated by this Agreement meet the requirements and conditions for using a registration statement on Form S-3 under the Act, set forth in the General Instructions to Form S-3. When the Registration Statement was declared effective, and on ~~any Settlement Date~~the Closing Date (as defined in Section 4) it (i) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the Securities Act and the 1933 Act Rules and Regulations and (ii) did ~~not, does~~ not ~~and~~ or will not ~~contain~~ include any untrue statement of a material fact or omit to state any material fact, necessary to make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) and at the Closing Date, the Prospectus, as amended or supplemented at any such time, (i) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the Securities Act and the 1933 Act Rules and Regulations and (ii) did not or will not include 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~~; provided, however,~~ . The representations and warranties set forth in this paragraph 1(b) do not apply to statements in 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 Prospectus based upon information relating to the ~~Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the date hereof,~~ Underwriter furnished to the Company ~~was and is a “well-known seasoned issuer” (as defined~~ in ~~Rule 405 under~~ writing by the ~~Securities Act (“Rule 405”))~~Underwriter expressly for use therein. (c) The ~~Registration Statement is an “automatic shelf registration statement” (as defined~~ documents incorporated by reference 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 the Prospectus or any amendment or supplement thereto (the "Incorporated Documents"), when they became or become effective under the Act or were or are filed with the Commission under the Act or the Securities Exchange Act of ~~the date hereof, and any post-effective amendment thereto~~1934, 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~~amended (the "Exchange Act"), ~~complied and~~ as the case may be, conformed or will ~~comply~~ conform in all material respects with the requirements of the Securities Act, the 1933 Act Rules and ~~did not~~ Regulations, the Exchange Act and/or the rules and ~~will not contain any~~ regulations of the Commission under the Exchange Act (the "Exchange Act Rules and Regulations"), as applicable. No Incorporated Document when it was filed (or, if an amendment with respect to such Incorporated 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 thereto~~no subsequently filed Incorporated 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 ~~therein, in the light of the circumstances under which they were made,~~ therein 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,~~ formed 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 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 the conduct of its business ~~or its ownership or leasing of property~~ requires such qualification, ~~except~~ and has full corporate power and authority necessary to ~~the extent that the failure to be so qualified~~ own or ~~be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings,~~ hold its properties, ~~management, results of operations or prospects of~~ to conduct the ~~Company, the Operating Partnership~~ business in which it is engaged and to enter into and perform its obligations under this Underwriting Agreement. Except for the Subsidiaries (as hereinafter defined), ~~taken as a whole~~the Company owns no direct or indirect equity or other beneficial interest in any corporation, limited liability company, partnership, joint venture 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”)other business entity. (je) ~~The~~ U.S. Restaurant Properties Operating ~~Partnership~~ L.P., a Delaware limited partnership subsidiary of the Company (the "Operating Partnership"), has been duly ~~organized,~~ formed and is validly existing as a limited partnership under the laws of the State of Delaware, is duly qualified to do business as a foreign limited partnership in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (except where the failure to be so qualified would not have a material adverse effect on the earnings, assets or business affairs of the Company and its Subsidiaries taken as a whole), and has all partnership power and authority necessary to own or hold its properties and its interests in its subsidiaries, to conduct the business in which it is engaged and to enter into and perform its obligations under this Underwriting Agreement. USRP Managing, Inc., a wholly-owned Delaware corporate subsidiary of the Company ("USRP Managing"), is the sole general partner of the Operating Partnership. The Agreement of Limited Partnership of the Operating Partnership (the "Operating Partnership Agreement") is in full force and effect, and the aggregate percentage interests of the Company, USRP Managing and the limited partners in the Operating Partnership are as set forth in the Prospectus. To the extent the Shares are issued in accordance with this Underwriting Agreement, (i) the percentage interest of the partners in the Operating Partnership will be adjusted accordingly and (ii) the Company will contribute the proceeds from the sale of the Shares to the Operating Partnership in exchange for a number of common units of limited partnership interest equal to the number of Shares issued. (f) USRP Managing has been duly formed and is validly existing as a corporation in good standing under the laws of the State of ~~Delaware~~ Delaware, 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 (except where the failure to be so qualified would not have a material adverse effect on the earnings, assets or business affairs of the Company and its Subsidiaries taken as a whole), and has ~~the full~~ all corporate power and authority necessary to own or ~~lease~~hold its assets, to conduct the business in which it is engaged and to enter into and perform its obligations under this Underwriting Agreement. All of the issued and outstanding capital stock of USRP Managing has been duly authorized and validly issued and is fully paid and non-assessable, is owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim, restriction or equities and has been offered and sold in compliance with all applicable laws (including, without limitation, federal or state securities laws). No shares of capital stock of USRP Managing are reserved for any purpose, and there are no outstanding securities convertible into or exchangeable for any capital stock of USRP Managing, and no outstanding options, rights (preemptive or otherwise) or warrants to purchase or to subscribe for shares of such capital stock or any other securities of USRP Managing. (g) All of the subsidiaries (as defined in the 1933 Act Rules and Regulations) of the Company, including the Operating Partnership and USRP Managing, are listed on Schedule II hereto (collectively, the "Subsidiaries"). Each of the Subsidiaries has been duly incorporated or formed, 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 an existing ~~as a~~ corporation, ~~limited partnership~~ general or limited ~~liability company in good standing under the laws of the jurisdiction of its organization~~partnership, ~~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 companyother legal entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be. Each of the Subsidiaries has full power (corporate and other) and authority to own or hold its properties and to conduct the business in which it is engaged, and is duly qualified or registered to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business ~~or its ownership or leasing of property~~ requires such ~~qualification~~qualification or registration, except ~~to the extent that~~ where the failure to be so qualified or be registered, considering all such cases in ~~good standing~~ the aggregate, would not have a ~~Material Adverse Effect.~~ material adverse effect on the business, properties, financial position or results of operations of the Company and its Subsidiaries taken as a whole. (h) All of the issued ~~shares of~~ and outstanding capital ~~stock, units of limited partnership interest and units of membership interest~~ stock or ownership interests of each Subsidiary ~~of the Company or the Operating Partnership~~ have been duly ~~authorized,~~ authorized and are validly issued, fully paid and ~~non-assessable~~nonassessable and, ~~have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed~~ except for the 8% limited partner interest in the ~~Registration Statement~~ Operating Partnership which is owned by QSV Properties, Inc. ("QSV") and the ~~Prospectus, the Company or~~ .02% limited partnership interests owned by certain sellers of properties to the Operating Partnership, as is wholly owned by the ~~case may be, owns~~Company, 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 indirectlythrough subsidiaries, free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~claims~~ claim or equity. (i) The Company has full legal right, power and authority to enter into and perform this Underwriting Agreement, to issue, sell and deliver the Shares as provided herein and to consummate the transactions contemplated herein. This Underwriting Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other ~~defects~~ laws of ~~any kind~~ general applicability relating to or affecting creditors' rights, or by general equity principles and except to the extent the indemnification provisions set forth in Section 8 of this Underwriting Agreement may be limited by federal or state securities laws or the public policy underlying such laws. (~~collectively~~j) The Operating Partnership has full legal right, ~~“Liens”)~~power and authority to enter into and perform this Underwriting Agreement and to consummate the transactions contemplated herein. ~~Schedule 3 hereto specifically identifies all subsidiaries~~ This Agreement has been duly authorized, executed and delivered by the Operating Partnership and constitutes a valid and binding agreement of the ~~Company~~ Operating Partnership enforceable in accordance with its terms, except to the extent that ~~are “significant subsidiaries”~~ enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors' rights, or by general equity principles and except to the extent the indemnification provisions set forth in Section 8 of this Underwriting Agreement may be limited by federal or state securities laws or the public policy underlying such laws. (k) The Operating Partnership Agreement has been duly and validly authorized, executed and delivered by or on behalf of the ~~Company within~~ partners of the ~~meaning~~ Operating Partnership and constitutes a valid and binding agreement of ~~Rule 1-02(w)~~ the parties thereto, enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of ~~Regulation S-X.~~general applicability relating to or affecting creditors' rights or by general equity principles. (l) The execution and performance of this Underwriting Agreement and the consummation of the transactions contemplated herein will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any agreement or instrument to which the Company or its Subsidiaries is a party or which they are bound or to which any of the property or other assets of the Company or its Subsidiaries is subject, (ii) the articles of incorporation, charter, by-laws, certificate of general or limited partnership, partnership agreement or other organizational document, as applicable, of the Company or its Subsidiaries, or (iii) to the best of the Company's knowledge, any statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or its Subsidiaries or any of their properties or other assets; no consent, approval, authorization or order of, filing with, or notice to any court or governmental agency or body is required for the consummation of the transactions contemplated by this Underwriting Agreement in connection with the issuance or sale of the Shares by the Company, except such as may be required under the Securities Act and applicable state securities, blue sky, or real estate syndication laws, if any, or pursuant to the listing requirements of the New York Stock Exchange ("NYSE") and the Company has ~~the corporate~~ full power and authority to ~~execute~~ authorize, issue and ~~deliver~~ sell the Shares as contemplated by this ~~Agreement and to perform its obligations hereunder and all corporate action required to be taken for the due and proper authorization~~Underwriting Agreement, ~~execution and delivery by it~~ free of ~~this Agreement and consummation by it~~ any preemptive rights. The issuance of the ~~transactions contemplated hereby have been duly~~ Shares will not result in a breach or violation of any of the terms and ~~validly taken~~provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note agreement, evidence of indebtedness, contract or other agreement or instrument to which the Company or its Subsidiaries are a party. (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 its Subsidiaries have complied 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 laws, regulations and orders applicable ~~legal requirements~~to them or their respective businesses laws, rules and regulations of the jurisdictions in which they are conducting business, including, without limitation, the ~~requirements~~ Americans with Disabilities Act of 1990 and all applicable local, state and federal employment, truth-in-advertising, franchising and immigration laws and regulations, except where 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 failure to be so 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~~ compliance would not ~~be subject to~~ha

Appears in 1 contract

Sources: Underwriting Agreement (U S Restaurant 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 each of the ~~Agent that as of~~ Underwriters on the date hereof, ~~as of each Representation~~ on the Closing Date (as defined ~~below~~in Section 2(c) hereof) and on ~~which a certificate is required to be delivered pursuant to~~ each Option Closing Date (as defined in Section ~~7(q~~2(b) hereof), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 Date~~hereof, 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(a~~5(a) hereof). (Ab) 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. (i) At the original effectiveness of the Registration Statement, (Bii) 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), (Ciii) 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 (Div) as of the ~~date hereof~~Applicable 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 and the shares of the Company’s common stock, $0.01 par value per share (“Common Stock”) issuable upon conversion thereof 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~~ Securities 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 ~~thereto~~thereto 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 Information~~Underwriter Information and the representations and warranties in this subsection shall not apply to the Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act. 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 ~~Agent~~Representatives. 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~~ 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;~~ 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 433~~ under the Securities Act and Rule 433 with respect to the offering of the ~~Placement Shares~~ Securities contemplated by the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus. (fg) ~~The Placement Shares~~ Prior to the Closing Date, the Company will have ~~been authorized for listing~~ applied to have the shares of Common Stock issuable upon conversion thereof 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 each of the Common Stock, the Company~~'s 9.25~~’s 6.45% Series A D Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A D Preferred Stock”), and the Company~~'s 7.875~~’s 6.250% Series B E Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B E 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~~ 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~~ D Preferred Stock or Series D E 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 to enter into and perform its obligations under this Agreement, the Securities, the Indenture and the Capped Call Confirmations; 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 and by the Capped Call Confirmations (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-assessable~~nonassessable, 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~~ Agreement, the Securities, the Indenture and the Capped Call Confirmations 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~~ Agreement, the Securities, the Indenture and the Capped Call Confirmations and consummation by it of the transactions contemplated hereby and thereby 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 Preferred Stock (the “Articles Supplementary”) have~~ Indenture has been duly authorized by the Company and duly qualified under the 1939 Act and, when duly executed and delivered by the Trustee, as of the Closing Date will be duly executed by the Company and ~~accepted for record~~ will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the ~~Maryland State Department~~ enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of ~~Assessments~~ creditors’ rights generally and ~~Taxation~~ except as enforcement thereof is subject to general principles of equity (~~the “SDAT”~~regardless of whether enforcement is considered in a proceeding in equity or at law). (op) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus (except for subsequent issuances, if any, pursuant to (i) reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, including OP Units (as defined below), (ii) the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) unregistered issuances not required to be disclosed pursuant to the Exchange Act or the Securities Act; provided, however, that any issuances pursuant to (i), (ii) or (iii) have been disclosed to the Underwriters). The Securities and the Indenture will conform as to legal matters to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus. The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (q) The statements in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus under the captions “Description of Common and Preferred Stock,” “Description of Debt Securities,” “Certain Provisions of Maryland Law and Our Charter and Bylaws,” “Material Federal Income Tax Considerations,” and “~~Plan of Distribution~~Underwriting” 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~~ 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 to,

Appears in 1 contract

Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)

Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating ~~Partnership~~Partnership 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 thereto~~to 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 Date~~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 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 thereto~~Date 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 ~~Prospectus~~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 not~~and, ~~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 ~~contemplated~~by 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 ~~Company~~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, ~~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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 ~~lease~~in 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 qualification~~or 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 authorization~~90% 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 taken~~a 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 authorization~~a 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 ~~purchase~~acquire, or instruments convertible into or exchangeable for, or agreements or ~~other obligations~~ understandings with respect to ~~issue~~the 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 outstanding~~Company, 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 Agreement~~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~~ such Underwritten Securities in accordance herewith, each of the ~~purchasers thereof~~ Underwriters will receive good, valid and marketable title to such ~~Placement Shares~~Underwritten Securities, free and clear of all ~~Liens. The certificates~~security interests, ~~if any~~mortgages, ~~to be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to~~pledges, 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 ~~hereof~~hereof 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) hereof~~the “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 amendment~~the “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 405~~Securities 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 statement~~Registration 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)(2~~424(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~~otherwise; 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.)

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 Date~~Preliminary Prospectus, ~~did not~~as 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)(2~~172 under the Act or any similar rule) ~~and at each Settlement Date~~in 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 ~~comply~~satisfy 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 ~~representatives~~sale of the Shares, ~~other than~~ “free writing prospectuses” (as defined in Rule 405 under the ~~Agents in their capacity as such~~Act) 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 ~~405~~405 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 NYSE~~trading, subject to official notice of issuance and ~~the Company is in material compliance with the rules~~ evidence of ~~the NYSE~~satisfactory 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, ~~management~~financial 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 lease~~own, ~~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 corporation~~Prospectus, 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 Prospectus~~Statement, 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 Agreement~~therefor as provided herein, will be duly and validly issued, fully paid and non-~~assessable~~assessable 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 Supplementary~~and delivered against payment therefor as provided herein, will be ~~validly issued~~free 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 to~~as 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 ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~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, ~~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 thereto~~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~~. 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 ~~Prospectus~~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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 issuer~~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, 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 405~~viii) 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 effect~~kind declared, ~~prevention~~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, ~~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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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) hereof~~21(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 Commission~~become effective. The Registration Statement, ~~as of~~ at the ~~date hereof~~Applicable 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 thereto~~when 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 Date~~the Prospectus will, ~~complied and will~~ comply in all material respects with the applicable requirements of the Securities ~~Act~~Act 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 Act~~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. (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 such~~meaning 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 ~~Agent~~Commission 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 Prospectus~~Statement, 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~~modified. 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 accompanying~~Commission, ~~or delivered prior to delivery of~~as 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 Information~~the 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 company~~partnership, 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, ~~liens~~claims, 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 outstanding~~Company. (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-assessable~~applicable 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 Shares~~Company, 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 NYSE~~Operating 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 Supplementary~~Common Stock Purchase Agreement, ~~will be validly issued~~dated August 6, ~~fully paid~~ 2010, by and ~~nonassessable~~among 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 to~~securities under the Registration Statement. Except as set forth in the Prospectus, there are no contracts, agre

Appears in 1 contract

Sources: Sales Agreement (Sun Communities 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 Agreement~~Manager, 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 ~~Commission~~Commission 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(a~~Rule 405 under the Securities Act) ~~hereof~~on 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(c~~164(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 Act~~date hereof and on each Representation Date, ~~and (D)~~ as of ~~the date hereof~~each 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 statement~~ineligible issuer” (as defined in Rule ~~405~~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. (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 statement~~offer 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 Act~~Manager 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 (ii~~Act) ~~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 405~~the 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 NYSE~~capital 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 ~~Maryland~~its 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), ~~earnings~~business, properties, ~~management~~assets, 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 authorization~~Manager, ~~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 Stock~~Prospectus.” (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 ~~options~~actions, ~~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 ~~purchase~~the best knowledge of the Company and the Operating Partnership, ~~agreements~~ threatened, against or ~~other obligations to issue~~involving 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 and~~authorized, ~~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 Agreement~~bankruptcy, ~~will be validly issued~~reorganization, ~~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. (u~~ii) 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(q~~20(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 thereto~~each 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 lease~~authority, 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 ~~stock~~stock 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-~~assessable~~assessable 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 Prospectus~~Schedule 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 for~~shares 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 to~~part 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 requirements~~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. (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 and~~not 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 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 Agreement~~Underwriters that: (a) ~~No order preventing~~ The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-19279), and any amendments thereto, and a related preliminary prospectus for the registration under the Securities 2 Act of 1933, as amended (the "Securities Act") of preferred stock, common stock (including the Shares) and warrants to purchase shares of preferred stock or ~~suspending the use of the Prospectus~~ common stock, which registration statement, as so amended, has been ~~issued~~ declared effective by the ~~Commission,~~ Commission and ~~the Prospectus, as~~ copies 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~~ which have heretofore been delivered to ~~state a material fact necessary in order to make the statements therein~~you. Such registration statement, in the ~~light~~ form in which it was declared effective, as amended, including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, is hereinafter referred to as the "Initial Registration Statement." Other than a registration statement, if any, increasing the size 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~~ offering (~~as defined in Section 9(a~~a "Rule 462(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~~462(b) 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 which became effective upon ~~filing~~ filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed with the ~~Commission~~Commission (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 Registration Statement and 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 Partnership~~Company's knowledge, threatened by the Commission. The ~~Registration Statement~~various parts of such 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 including 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 exhibits thereto and the ~~Operating Partnership make no representation and warranty with respect to any Agent Information. The~~ documents ~~incorporated, or to be incorporated,~~ incorporated by reference in the ~~Registration Statement and~~ prospectus contained in the ~~Prospectus,~~ registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereafter collectively called the "Registration Statement." The Company proposes to file with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Securities Act (the "Securities Act Regulations") the Prospectus Supplement (as defined in Section 4(j) hereof) and the prospectus dated February 25, 1997 (the "Base Prospectus"), and has previously advised you of all further information (financial and other) with respect to 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, 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)(a~~Rule 424(b) of the Securities Act Regulations), including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, are 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 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 ~~134~~ 424(b) of the Securities Act 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. As used herein, the term "date of the Prospectus" shall be deemed to refer to the date of the applicable Prospectus Supplement. 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~~ Act, is hereafter called a "Preliminary Prospectus." Unless the context otherwise requires, all references in this Agreement to documents, financial statements and schedules and other information which is "contained", "included", "stated", "described in" or "referred to" in the Registration Statement or the Prospectus (iiand all other references of like import) ~~each electronic road show~~ shall be deemed to mean and ~~any~~ include all such documents, financial statements and schedules and other ~~written communications approved in writing in advance~~ information which is or is deemed to be incorporated 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 reference 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 references 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 tothis

Appears in 1 contract

Sources: Underwriting Agreement (Glenborough Realty Trust Inc)

Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating ~~Partnership~~Partnership 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 thereto~~to 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 Date~~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 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 thereto~~Date 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 ~~Prospectus~~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 not~~and, ~~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, 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 ~~contemplated~~by 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 ~~Company~~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, ~~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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 ~~lease~~in 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 qualification~~or 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 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 authorization~~90% 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 taken~~a 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 4.8% by Duke Management, Inc. and 95.2% 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 authorization~~other 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") and a warrant to AEW Capital Management, L.P. or its affiliates (the "AEW Warrant"). (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 ~~purchase~~acquire, or instruments convertible into or exchangeable for, or agreements or ~~other obligations~~ understandings with respect to ~~issue~~the 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 outstanding~~Company, 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 Agreement~~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~~ such Underwritten Securities 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 each 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 toUnderwri

Appears in 1 contract

Sources: Underwriting Agreement (Duke Weeks Realty Corp)

Appears in 1 contract

Sources: Equity Underwriting Agreement (US Federal Properties Trust 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 the Manager 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 ~~hereof~~hereof and, as amended or supplemented, will comply in all material respects at each deemed effective date with respect to the 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~~ Shares pursuant to this ~~Agreement:~~ Agreement (aeach, a “Time of Sale”) ~~No order preventing or suspending~~ and at each Settlement Date (as hereinafter defined) with the ~~use~~ requirements of the ~~Prospectus has been issued by the Commission~~Act, 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 Rules 153 or 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 Date~~Shares, 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 Manager or the Alternative Manager 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)~~. (b) (A) At 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 hereof~~Time 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)(2~~401(g)(2) ~~and at each Settlement Date~~under 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 thereto~~Shares 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 comply~~Rule 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 ~~405~~405 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 Prospectus~~Statement. (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 Partnership~~related 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; the supporting schedules, if any, relating to the Company ~~within~~ and its consolidated subsidiaries as of the ~~meaning~~ dates indicated and their results of ~~Rule 1-02(w~~operations and cash flows for the periods specified, 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; 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 and the Prospectus ~~(except for subsequent issuances~~present fairly in all material respects the information shown therein, ~~if any~~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, ~~pursuant~~ and the assumptions used in the preparation thereof are reasonable and the adjustments used therein give appropriate effect to ~~(i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans~~ the transactions and circumstances referred to therein; no financial statements (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 ~~the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to~~ all disclosures contained in the Registration ~~Statement~~ 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 ~~Prospectus, including OP Units or (iv~~Commission) ~~unregistered issuances not required to be disclosed pursuant to~~ comply in all material respects with Regulation G under the Exchange Act, and Item 10 of Regulation S-K under the ~~Securities Act~~ 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 ~~rule or regulation promulgated thereunder). The authorized capital stock of~~ Permitted Free Writing Prospectus fairly presents the ~~Company conforms and will conform~~ information called for in all material respects to and has been prepared in accordance with the ~~description thereof contained in the Registration Statement~~ Commission’s rules 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 outstandingguidelines applicable thereto. (se) ~~Except as described in~~ This Agreement has been duly authorized, executed and delivered by the ~~Registration Statement~~ Company 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 outstandingOperating Partnership. (tf) The ~~Placement~~ 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 Agreement~~therefor as provided herein, will be duly and validly ~~issued,~~ issued and fully paid and non-~~assessable~~assessable and will conform in all material respects to all statements related to the Shares contained in the Registration Statement, ~~and~~ the ~~issuance~~ Prospectus or any Permitted Free Writing 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, to be certificate 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~~ 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 “~~Charter~~Bylaws”~~), and Bylaws, as amended, 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, 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 Supplementary~~Company, ~~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 nonassessable~~made 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~~ the 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 Partnership or any of their respective subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company, the Operating Partnership 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 Company, the Operating Partnership or any of their respective subsidiaries that are required to be disclosed in the Registration Statement, the Prospectus or any Permitted Free Writing 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 Prospectus or any Permitted Free Writing Prospectus; (vii) the mortgages that encumber certain of the Properties are not ~~be subject to~~convertible into equity securities of the entity owning a particular property; and (viii) none of the Company, the Operating Partnership or any of their respective subsidiaries or, to the knowledge of any of the Company, the Operating Partnership 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 Company, the Operating Partnership or any of their respective subsidiaries considered as one enterprise and none of the Company, the Operating Partne

Appears in 1 contract

Sources: Equity Distribution Agreement (QualityTech, LP)

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. 333-99345) 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 organized 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 issued and paid for as contemplated herein will be validly issued, fully paid and non-assessable; and no preemptive rights of shareholders 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 (“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 gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any Common Shares. (d) The outstanding OP Units of the Operating Partnership have been duly authorized and validly issued and are fully paid and non-assessable. 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 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. (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 Date~~the 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 Act~~this 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 Act~~requirements 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 ~~Commission~~periods 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 presents fairly the ~~Company (including its agents~~ information shown therein and ~~representatives, other than~~ such data has 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 and~~in, ~~when taken together with~~ the ~~Prospectus accompanying~~Registration 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 Information~~Regulations. (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 NYSE~~suit, 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 ~~Prospectus~~Subsidiaries 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 writing~~Registration Statement. (ik) The Company ~~has been duly incorporated~~and 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, (C) no material casualty loss or material condemnation or other material adverse event with respect to any of the Properties has occurred, and (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 except as described in the Registration Statement or by the Operating Partnership or any of its Subsidiaries with respect to any class of their capital stock, partnership interests, limited liability company interests or other ownership interests, as applicable. The Company and the Subsidiaries have no material contingent obligations which are not disclosed in the Company’s financial statements which are included in the Registration Statement. (n) Neither the Company nor any of the Subsidiaries is or with the giving of notice or lapse of time or both, will be, in violation of or in default under (i) its declaration of trust, certificate of formation, charter, by-laws, partnership agreement, limited liability company agreement 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 leaseother organizational document, as the case may be, ~~its property and~~ or (ii) under any agreement, lease, contract, indenture or other instrument or obligation to ~~operate its property and conduct its business as described in the Registration Statement and the Prospectus and~~ which it is ~~duly qualified to transact business and is in good standing as~~ a ~~foreign limited partnership in each jurisdiction in~~ party or by which ~~the conduct~~ it, or any of its ~~business~~ properties, is bound and, solely with respect to this clause (ii), which violation 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~~ default would ~~not, individually or in the aggregate,~~ have a ~~Material Adverse Effect.~~ material adverse effect on the earnings, business, management, properties, assets, rights, operations, 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 the ~~Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing~~ Subsidiaries taken 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 Effectwhole. 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 herein 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 tofulfillment o

Appears in 1 contract

Sources: Equity 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 each of the ~~Agent that as of~~ Underwriters on the date hereof, ~~as of each Representation~~ on the Closing Date (as defined ~~below~~in Section 2(c) hereof) and on ~~which a certificate is required to be delivered pursuant to~~ each Option Closing Date (as defined in Section ~~7(q~~2(b) hereof), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 Date~~hereof, 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(a~~5(a) hereof). (Ab) 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. (i) At the original effectiveness of the Registration Statement, (Bii) 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), (Ciii) 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 (Div) as of the ~~date hereof~~Applicable 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 ~~thereto~~thereto 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 ~~Agent~~Representatives. 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~~ 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;~~ 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 433~~ under the Securities Act and Rule 433 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 each of the Company’s common stock, $0.01 par value per share (the “Common Stock”), the Company~~'s 9.25~~’s 6.45% Series A D Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series A D Preferred Stock”), and the Company~~'s 7.875~~’s 6.250% Series B E Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B E 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~~ D Preferred Stock or Series D E 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-assessable~~nonassessable, 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 F 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 F 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 Distribution~~Underwriting” 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, including OP Units (~~iii~~as defined below), (ii) ~~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~~ Units, or (iviii) unregistered issuances not required to be disclosed pursuant to the Exchange ~~Act~~Act or the Securities Act; provided, however, that any issuances pursuant to (i), (ii) or (iii) have been disclosed to the Underwriters). The Series F 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. The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the ~~Prospectus under the caption “Description of Common and Preferred Stock~~Prospectus.” (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~~ 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~~ therefor in accordance with the terms of this Agreement, 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 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 toaccor

Appears in 1 contract

Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)

Representations and Warranties of the Company and the Operating Partnership. ~~The Company and~~ Each of the ~~Operating Partnership~~Transaction 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 Agreement~~Closing Date (if any), as follows: (a) ~~No order preventing or suspending~~ On the ~~use of~~ Effective Date, the ~~Prospectus has been issued by the Commission~~Registration 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 Exchange Act ~~or form~~ and the rules and regulations of ~~prospectus)~~the Commission thereunder. At the Effective Date, ~~(C)~~ at the ~~time~~ date hereof and at the ~~Company or any person acting on its behalf (within the meaning~~Closing Date, 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~~ . 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 thereto~~Offering (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 made~~time 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)(a~~Rule 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 qualification~~electronically 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~~ Except as set forth in the Disclosure Schedule, which Disclosure Schedule shall be deemed a part hereof and ~~the Operating Partnership~~shall qualify any representation or warranty otherwise made herein, ~~jointly and severally, represent and warrant~~ to the ~~Agent that as~~ extent such qualification is noted under a corresponding numbered section of the ~~date hereof, as of each Representation Date (as defined below) on which a certificate~~ Disclosure Schedule or 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, howeverotherwise reasonably apparent, the Company and the Operating Partnership ~~make no representation~~ understand that Purchaser will rely on the representations made herein to acquire the Preferred Shares 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 Warrants and therefore jointly and severally represent and warrant to the ~~Securities in reliance on the exemption of Rule 163 under the Securities Act, and (D)~~ Purchaser that as of the date ~~hereof~~of this Agreement and as of the Closing Date, as the case may be: (a) The Company ~~was and~~ is a ~~“well-known seasoned issuer” (as defined in Rule 405 under the Securities Act~~ real estate investment trust (“~~Rule 405~~REIT”))) organized in the state of Virginia. The Company timely and properly elected to be taxed as a qualified REIT, within the meaning of section 856 of the Internal Revenue Code of 1986, as amended (the “Code”) effective with its first Company taxable year and has continued to file its federal tax return as a qualified REIT on Form 1120 REIT in each of the past years and also will be for the following and subsequent taxable years. (b) None of them are and have never been taxable as an insurance company for federal income tax purposes. (c) The ~~Registration Statement is an “automatic shelf registration statement” (as defined~~ Company has a board of directors vested with exclusive authority in ~~Rule 405)~~ the management of the Company, the conduct of its affairs and the ~~Securities have been~~ management and ~~remain eligible for registration by~~ disposition of the ~~Company on such automatic shelf registration statement~~Company’s property. The ~~Registration Statement became effective upon filing with~~ Company has officers to whom the ~~Commission. No order suspending the effectiveness~~ board of ~~the Registration Statement~~ directors 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 Actdelegated certain management powers. (d) ~~Other than~~ For all taxable years since (and including) the ~~Registration Statement and the Prospectus~~Company’s first taxable year as a REIT, the beneficial ownership of the Company has been (~~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~~ continue to ~~any Issuer Free Writing Prospectus (other than as referred to in clause (i~~be) 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 evidenced 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 Informationtransferable shares. (e) ~~The Company was not an “ineligible issuer” (as defined in Rule 405) as~~ For all taxable years of the ~~eligibility determination date~~ Company ending after the Company’s first taxable year as a REIT, the beneficial ownership of the Company’s shares has been and will continue to be held by 100 or more persons during at least 335 days of each such taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. To the Company’s best knowledge, the Company currently qualifies as a “domestically controlled qualified investment entity” within the meaning of Section 897(h) of the Code, and will use its best endeavors to qualify as such in the future and it will serve notice to the Purchaser that such status may, or, has changed. Taking into account the attribution rules summarized below, at no time during the last half of any Company taxable year ending after the Company’s first taxable year as a REIT, has more than 50 percent (50%) in value of the Company’s beneficial ownership been owned (nor will be owned) directly or indirectly, by five or fewer individuals. For this purpose, stock owned, directly or indirectly, by or for a corporation, partnership, estate or trust is considered as being owned proportionately by such entity’s shareholders, partners or beneficiaries, as the case may be. In certain situations involving tax-exempt trust, trust established for charitable purposes, private foundations and supplemental unemployment compensations plans, such trust(s) may be treated as an individual. In addition, an individual is considered as owning the stock, owned, directly or indirectly, by or for his family or by or for his partner. For this purpose, the family of an individual includes only his brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants. Furthermore, if any person has an option to acquire stock (or an option, or series of options, to acquire such an option on the stock) such stock is considered owned by such person, stock represented by convertible securities will be considered as owned by such person, if such attribution has the effect of causing five or fewer individuals to be treated as owning 50 percent (50%) or more of Company stock. In certain cases, stock that is constructively owned by reason of the application of one or more attribution rules may be treated as actually owned by such owner 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~~again applying an attribution rule. (f) The ~~Placement Shares have~~ Company’s REIT election has never been ~~authorized for listing on the NYSE~~terminated or revoked. In addition, ~~subject to official notice of issuance and~~ the Company is ~~in material compliance with the rules~~ not a successor to an entity or assets 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 an entity whose REIT election was ever terminated 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 NYSErevoked. (g) To For all taxable years since (and including) the ~~knowledge~~ Company’s first taxable year as a REIT, the Company has derived (and will continue to derive) at least 95 percent (95) of its gross income (excluding gross income from prohibited transactions) from the following sources: dividends; interest; rents from real property; gain from the disposition of stock, securities and real property (other than gain from prohibited transactions); abatements and refunds of real property taxes; income and gain derived from foreclosure property (for which the Company has made an election to treat as foreclosure property); and amounts (other than amounts the determination of which depends in whole or in part on the income or profits of any person) received or accrued as consideration for entering into agreements (i) to make loans secured by mortgages on real property or on interests in real property or (ii) to purchase or lease real property (including interests in real property and interest in mortgages on real property). The permitted sources of income also include gain from the sale or disposition of a real estate asset which is not a prohibited transaction. For all taxable years since (and including) the Company’s first taxable year as a REIT, the Company has derived (and will continue to derive) at least 75% (75%) of its gross income (excluding gross income from prohibited transactions) from the following sources: dividends; interest; rents from real property; gain from the disposition of stock, securities and real property (other than gain from prohibited transactions); abatements and refunds of real property taxes; income and gain derived from foreclosure property (for which the Company has made an election to treat as foreclosure property); and amounts (other than amounts the determination of which depends in whole or in part on the income or profits of any person) received or accrued as consideration for entering into agreements (i) to make loans secured by mortgages on real property or on interests in real property or (ii) to purchase or lease real property (including interests in real property and interest in mortgages on real property), and qualified temporary investment income. Qualified temporary investment income means any income which is attributable to stock or a debt instrument (within the meaning of section 1275 of the ~~Company~~Code), ~~there are no contracts~~ is attributable to the temporary investment of new capital, and is received during the one-year period beginning on the date on which the Company receives the new capital (new capital includes proceeds of stock offering and public debt offerings having a maturity of at least five years). The permitted sources of income also include gain from the sale or ~~documents~~ disposition of a ~~character~~ real estate asset which ~~are required to be filed as exhibits to the Registration Statement other than those that are so filed~~is not a prohibited transaction. (h) To For each taxable year, since (and including) the ~~knowledge~~ Company’s first year as a REIT the Company did not, (and will not) render any services to tenants or operate or manage any property other than services or management that could be rendered without disqualifying rents under section 856(d)(7)(C)(ii) of the ~~Company~~ Code (relating to customary management activities) and section 956(d)(7)(B) of the ~~Operating Partnership~~Code (relating to de minimis services performed in taxable years beginning after August, ~~there are no affiliations or associations between~~ 6, 1997), except (i) through a qualified independent contractor from whom it did not derive or receive any ~~member~~ income, (ii) through a qualified Taxable REIT Subsidiary (in the case of taxable years beginning after December 31, 2000), or (iii) except amounts that would not cause Company to fail to qualify as REIT. The Company submits with its return each year the information required under section 1.856-4(b)(5)(iv) of the ~~Financial Industry Regulatory Authority~~Treasury Regulations with respect to each independent contractor (e.g., ~~Inc.~~ name, address, stock ownership or assets and profits interests) (~~“FINRA”~~i) For all taxable years since (and including) the Company’s first taxable year as a REIT, at the close of each quarter of each such taxable year, (i) at least 75 percent (75%) of the value of the Company’s total assets has (and will continue to be) been represented by real estate assets, cash and cash items (including receivables),. and government securities; (ii) not more than 25 percent (25%) of the value of the Company’s total assets has been (nor will b) represented by securities (other than those includible in (i), or securities of a Qualified REIT Subsidiary, (iii) (A) with respect to each Company’s taxable year beginning prior to December 31, 2000, not more than five percent (5%) of the value of the Company’s total assets has been (nor will be) represented by securities of any one issuer (other than those includible in (i) or Qualified REIT Subsidiaries), and (iiB) with respect to each Company’s taxable year beginning after December 31, 2000, not more than five percent (5%) of the ~~Company or any~~ value of the Company’s ~~officers~~total asset has been (nor will be) represented by securities of any one issuer (other than those includible in (i), ~~directors~~Taxable REIT Subsidiaries or Qualified REIT Subsidiaries); and (iv) the Company has not (and will not) hold securities representing more than 10 percent (10%) of the total voting power of the outstanding securities of any one issuer (other than those includible in (i), Taxable REIT Subsidiaries or Qualified REIT Subsidiaries). In addition, for all taxable years beginning after December 31, 2000, the Company has not held (and will not hold) at the close of any quarter securities of one issuer that represent more than 10 percent (10%) of the value of the total outstanding securities of such issuer (other than (A) securities includible in representations made herein, and (B) securities that qualify as “straight debt” under section 856(c)(7) of the Code (but only if the Company holds no other securities in such entity) (C) securities in a Qualified REIT Subsidiary, and (D) securities in a Taxable REIT Subsidiary). If Company holds securities in a Taxable REIT Subsidiary, the value of its aggregate securities holding in all Taxable REIT Subsidiaries will not exceed 20 percent (20%) (25% for tax years beginning after July 30, 2008) of the value of its total assets at the close of any quarter. (j) For all taxable years since (and including) the Company’s first taxable year as a REIT, the Company has made (and will continue to make) dividend distributions sufficient to qualify for a dividends paid deduction during such taxable equal to or in excess of 90 percent (90%) (95 percent (95%) for taxable years beginning on or before December 31, 2000) of its REIT taxable income for the taxable year (determined before taking the dividends paid deduction and by excluding any net capital gain), plus 90 percent (90%) (95 percent (95%) for taxable years beginning on or before December 31, 2000) or the excess of the net income from foreclosure property over the tax imposed on such income. (k) For all taxable years since (and including) the Company’s first taxable year as a REIT, each dividend distribution was (and will continue to be) pro rata with no preference to any shares of stock as compared with other shares of the same class, and with no reference to one class of stock as compared to another class except to the extent that the former is entitled to the preference pursuant to the Company’s governing instruments. (l) As of the close of all taxable years since (and including) the Company’s first taxable year as a REIT, either the Company has not (and will not have) any earnings and profits accumulated (or acquired from another entity) from any taxable year in which the entity was not a REIT, or 5% if the Company has earnings and profits accumulated from any taxable year for which the Company was not a REIT, or ~~greater security holders~~ accumulated by an entity that was not a REIT, these accumulated earnings and profits will be (or ~~any beneficial owner~~ have been) distributed prior to the end of the Company’s ~~unregistered equity securities that~~ taxable year in which such earnings and profits were acquired by the Company. (m) For all taxable year since (and including) the Company’s first taxable year as a REIT, the Company has maintained (and will continue to maintain) at all times, such records as will disclose the actual ownership of its stock for federal income tax purposes, to the extent required by the Code and Treasury Regulations, and will make such records available for inspection by any ~~time on~~ internal revenue officer or ~~after~~ employee for so long as the ~~180th day immediately preceding~~ contents thereof may become material in the ~~date~~ administration of any Internal Revenue law. The company has also made demand (and will continue to do so), within thirty (30) days of the ~~Prospectus~~end of each taxable year, ~~except~~ upon certain of its record shareholders (as provided in section 1.857-8 of the Treasury Regulations), for disclosure in writing of the actual owners of shares held in the record holder’s name and will retain such written responses as part of its permanent records. (n) For each taxable year, since (and including) the Company’s first year as a REIT, at all times the Company has ~~been disclosed~~ used and will continue to use, its best efforts to monitor ownership of its outstanding capital stock in order to ensure compliance with, and has used and will continue to use its best efforts to enforce, the ~~Representatives~~ transfer and ownership restrictions (relating to preserving REIT status), if any, on its outstanding capital stock as set forth in ~~writing~~the Company’s Declaration of Trust as amended and supplemented from time to time. (o) To the extent the Company owns any stock, directly or indirectly, in a Taxable REIT Subsidiary, as defined in section 856(I) of the Code, (i) The Company ~~has been duly incorporated, is validly existing as a corporation in good standing under~~ and the ~~laws~~ Taxable REIT Subsidiary have fully and timely complied with the requirements of section 857(b)(7) of the ~~State~~ Code (relating to the imposition of ~~Maryland~~tax on predetermined rents, ~~has the corporate power~~ predetermined deductions and ~~authority to own and lease~~excess interest, as ~~the case may be, its property~~ defined herein) 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 paid 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 accrued any tax due thereunder; and (ii) ~~prevent or materially interfere~~ The Company and Taxable REIT Subsidiary have fully complied with ~~consummation~~ the limitations on interest deductions in section 163(j) of the ~~transactions contemplated hereby~~ Code, if applicable. (p) A timely Taxable REIT Subsidiary election was made for all corporations acquired or formed by the ~~occurrence~~ Company where the Company owned, directly or indirectly, greater than 10 percent (10%) of ~~any~~ the total voting power or value of the outstanding securities of such ~~effect, prevention, interference or result described in the foregoing clauses~~ issuer (~~i) or (ii) being herein referred to as a “Material Adverse Effect”~~other than Qualified REIT Subsidiaries). (jq) The ~~Operating Partnership~~ Company has ~~been duly organized~~timely at all times, ~~is validly existing as a limited partnership~~ (and will continue to) pay any taxes, interest or penalties resulting from any prohibited transactions, shortfalls in ~~good standing under~~ satisfying the ~~laws of~~ qualified income tests, or shortfalls in timely satisfying 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 EffectREIT dividend distributions requirements. (kr) ~~Each “significant subsidiary”~~ The Company has not been nor is being examined with respect to its payment of taxes, nor has been notified of any asserted deficiency in its payment of taxes. (~~as defined~~ s) With respect to each and every loan receivable, the Company has not rendered any service to or on behalf of any of their borrowers for which any of them received any fees (including, without limitation, transaction fees and penalty fees), other than services related to collection and processing payments, under loans for which the Company received fees which in ~~Rule~~ the aggregate have not exceeded one percent (1~~-02(w) of Regulation S-X~~%) of the ~~Company~~ gross income and other than services which would not cause the ~~Operating Partnership~~ Company to fail to qualify as a REIT. (~~each a “Subsidiary” and collectively~~ t) The shares of the Company’s Common Stock are currently listed on Nasdaq Stock Market (the “~~Subsidiaries~~Exchange”) ~~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. trading symbol “SPPR.” (u) All of the issued and outstanding shares of ~~capital stock, units of limited partnership interest and units of membership interest of each Subsidiary of the Company or the Operating Partnership~~ Common Stock have been duly ~~authorized, are~~ authorized and validly issued, are fully paid and ~~non-assessable,~~ nonassessable and have been issued in compliance with applicable federal and state securities ~~laws and~~ laws. None of the outstanding shares of Common Stock of the Company were ~~not~~ issued in violation of any preemptive rights, rights of first refusal or other 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~~SEC Reports, 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~~ similar rights to ~~purchase~~subscribe for, ~~agreements~~ or ~~other~~ contractual obligations to issue, sell, transfer or ~~rights to convert~~ acquire, 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 or any securities convertible into or exchangeable for any such ~~shares of Common Stock will not be subject to~~shar

Appears in 1 contract

Sources: Purchase Agreement (Supertel Hospitality Inc)

Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating ~~Partnership~~Partnership 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 thereto~~to the Representatives and each other U.S. Underwriter named in the applicable U.S. 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 U.S. 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 Date~~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 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 U.S. 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 thereto~~Date 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 U.S. Prospectus made in reliance upon and in conformity with information furnished to the Company or the Operating Partnership in writing by any U.S. 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 U.S. prospectus, U.S. 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 ~~Prospectus~~U.S. 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 not~~and, ~~does not and will not include any information that conflicted, conflicts or will conflict~~ when read together with the other information ~~contained~~ in the U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 ~~contemplated~~by 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 ~~Company~~Commission for additional information has been complied with. No order preventing or suspending the use of the U.S. 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 qualificationU.S. 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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 ~~lease~~in 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 (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 U.S. Prospectus and to enter into and perform its obligations under this Agreement, the U.S. 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 U.S. 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 qualification~~or 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 U.S. Underwritten Securities are issued by the Company, and if the U.S. 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 U.S. Underwritten Securities are issued by the Operating Partnership, and if the U.S. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 (collectively~~than 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 authorization~~90% 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 taken~~a 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~~ U.S. Prospectus and ~~the Prospectus~~transactions in connection with dividend reinvestment plans, and stock option and other employee benefit plans, there are no ~~options~~outstanding rights, warrants or ~~other rights~~ options to ~~purchase~~acquire, or instruments convertible into or exchangeable for, or agreements or ~~other obligations~~ understandings with respect to ~~issue~~the 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 outstanding~~Company, 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 U.S. Underwritten Securities, if such U.S. Underwritten Securities are either 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 delivered by the Company pursuant to this Agreement and the applicable U.S. Terms Agreement against payment ~~therefore~~ of the consideration set forth in ~~accordance with~~ the ~~terms of this Agreement~~U.S. 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~~ such U.S. Underwritten Securities in accordance herewith, each of the ~~purchasers thereof~~ U.S. Underwriters will receive good, valid and marketable title to such ~~Placement Shares~~U.S. Underwritten Securities, free and clear of all ~~Liens. The certificates~~security interests, 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 tomortgage

Appears in 1 contract

Sources: Form 8 K

Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating ~~Partnership~~Partnership 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 StatementUnderwriters, as of the date hereof, and ~~any post-effective amendment thereto~~as of the Closing Time (as defined below), as follows: (i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and 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~~the Closing Time 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 the Closing Time, 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; . The Prospectus, as of the date hereof does not, and as of the ~~date~~ Closing Time (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 Notes which differs from the Prospectus ~~and any amendment or supplement thereto~~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, 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 expressly for use in the Registration Statement or Prospectus, or an amendment or supplement thereto, 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 Notes, 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 ~~Prospectus~~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 not~~and, ~~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 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 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 ~~contemplated~~by 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 ~~Company~~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, ~~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 ~~assets~~condition, ~~business, condition (~~financial or otherwise), or in the earnings, ~~properties~~assets, ~~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 of the Company and dividends on the preferred stock of the Company in amounts per share that are consistent with past practice, there has been no dividend or distribution of any ~~such effect~~kind declared, ~~prevention~~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, ~~interference~~ the issuance of shares of common stock of the Company 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 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 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~~ 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). (xii) All of the issued and outstanding shares of capital ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. Neither the Company nor the Operating Partnership owns any direct or indirect equity interest in any entity other 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 the sole limited partners of the Services Partnership. Duke Business Centers Corporation, a wholly-owned subsidiary of Duke Realty Construction, Inc. is the sole general partner and a 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. (xiii) Except for transactions described in the Prospectus of the Company and transactions in connection with dividend reinvestment plans, stock option and other employee benefit plans, and as otherwise set forth below, there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, or agreements or understandings with respect to the sale or issuance of, any shares of capital stock of or partnership or other equity interest in the Company, the Operating Partnership or any subsidiary except for the shares of common stock of the Company which may be issued in exchange for Units. The Company is 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. (xiv) 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. (xv) The Notes are in the 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 executed, authenticated, issued and delivered in the manner provided for in this Agreement and the Indenture, against payment of the consideration therefor and delivery of the PATS (as defined below) as specified in this Agreement, the Notes will constitute valid and legally binding obligations of the Operating Partnership, entitled to the benefits of the Indenture and the Notes will be enforceable against the Operating Partnership in accordance with their terms. Upon payment of the purchase price, delivery of the PATS (as defined below) and delivery of the Notes in accordance herewith, each of the Underwriters will receive good, valid and marketable title to the Notes, free and clear of all security interests, mortgages, pledges, liens~~, mortgages~~, encumbrances, ~~pledges,~~ claims ~~or other defects of any kind (collectively, “Liens”)~~and equities. ~~Schedule 3 hereto specifically identifies all subsidiaries~~ The terms of the ~~Company that are “significant subsidiaries”~~ Notes conform to all statements and descriptions related thereto in the Prospectus. The Notes rank and will rank on a parity with all unsecured indebtedness (other than subordinated indebtedness) of the ~~Company within~~ Operating Partnership that is outstanding at the ~~meaning of Rule 1-02(w) of Regulation S-X. (l) The Company has the corporate power~~ Closing Time or that may be incurred thereafter, and ~~authority~~ senior 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~~ subordinated indebtedness of the ~~transactions contemplated hereby have been duly and validly taken~~Operating Partnership that is outstanding at the Closing Time or that may be incurred thereafter, except that the Notes will be effectively subordinated to the prior claims of each secured mortgage lender to any specific Property which secures such lender’s mortgage. (mxvi) The ~~Operating Partnership has the partnership power and authority~~ Notes being sold 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 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~~ statements relating thereto contained in the ~~Registration Statement~~ Prospectus 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 or incorporated by reference, as the case may be, as an exhibit toto the Registration Statement. (xvii) There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference ~~in, the Registration Statement and will~~ therein or to 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,~~ filed 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 toexhibits thereto wh

Appears in 1 contract

Sources: Underwriting 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 hereof~~Additional 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 Agreement~~that: (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 Statement~~such 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 prospectus~~filed), (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 Act~~requirements 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 thereto~~Additional 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 Prospectus~~Shares, 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 Information~~Underwriter 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 issuer~~road 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 ~~Prospectus~~circumstances 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 writing~~Securities 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 ~~incorporated~~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). (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 ~~Maryland~~its 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), ~~earnings~~business, properties, ~~management~~assets, 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, 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 Date~~this 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 made~~Applicable Time, ~~not misleading; provided~~as 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 ~~Statement~~Statement 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 Partnership~~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. The Registration Statement was initially filed with the Commission on August 12, 2024. (c) Registration Statement, as Prospectus and Disclosure at the 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 Date~~the 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 ~~thereto~~thereto 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, ~~however~~complied 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 Information~~of 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 issuer~~issuer 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 Prospectus~~parties 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 (ii~~as defined below) ~~the Company or any of the Company’s officers, directors~~other 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 Rule 163B of the ~~transactions contemplated hereby (~~Securities Act. Except through, or as disclosed to, the ~~occurrence of any such effect~~Representatives, 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 “~~Subsidiary~~written 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 taken~~circumstances 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

Sources: Underwriting Agreement (NETSTREIT Corp.)

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 ~~below~~in Section 2 hereof) and on ~~which a certificate is required to be delivered pursuant to~~ each Option Closing Date (as defined in Section ~~7(q~~2 hereof), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 Date~~hereof, 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(a~~5(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 in reliance on the exemption of Rule 163 under the Securities Act, and (D) as of the ~~date hereof~~Applicable 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 have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Registration Statement ~~became~~ has become effective ~~upon filing with~~ under the ~~Commission~~Securities Act. 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 Date~~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 ~~thereto~~thereto 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 ~~Agent~~Representatives. 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~~405 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, 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 each of the Company’s common stock, $0.01 par value per share (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 C 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-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, 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 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 D 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 Distribution~~Underwriting” 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 and~~ column entitled “Actual” 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 Pricing Disclosure Package and will be as set forth in the Prospectus~~, (iii) pursuant~~ . The Series D Preferred Stock conforms and will conform as to legal matters to the ~~exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to~~ description thereof contained 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~~ Prospectus under the ~~Exchange Act,~~ caption “Description of the ~~Securities Act or any rule or regulation promulgated thereunder).~~ Series D 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~~ 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. (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 tow

Appears in 1 contract

Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)

Representations and Warranties of the Company and the Operating Partnership. (a) The Company and the Operating ~~Partnership~~Partnership 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 Agreement~~follows: (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 ~~Commission~~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. 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 ~~Prospectus~~Company 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 Date~~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, ~~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 thereto~~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~~. 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 ~~Prospectus~~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 not~~and, ~~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, ~~however~~405 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 Information~~free 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 issuer~~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, 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 405~~viii) 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 effect~~kind declared, ~~prevention~~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, ~~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 ~~organized~~authorized 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 subsidiary~~Capitalization,” ~~(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 Effect~~caption. 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 ~~stock~~stock 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 ~~indirectly~~a subsidiary, in each case free and clear of ~~all~~ any security ~~interests~~interest, ~~liens~~mortgage, ~~mortgages~~pledge, ~~encumbrances~~lien, ~~pledges~~encumbrance, ~~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 to

Appears in 1 contract

Sources: Terms Agreement (Duke Realty Corp)

Appears in 1 contract

Sources: Sales Agreement (Summit Hotel Properties, Inc.)

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 Agreement~~Underwriters 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 statement~~that 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 Information~~Regulations. 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 ~~comply~~conform 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 ~~below~~in Section 2 hereof) and on ~~which a certificate is required to be delivered pursuant to~~ each Option Closing Date (as defined in Section ~~7(q~~2 hereof), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 Date~~hereof, 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(a~~5(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 hereof~~Applicable 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 ~~thereto~~thereto 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 ~~Agent~~Representatives. 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-assessable~~nonassessable, 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 Distribution~~Underwriting” 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~~ Each of the ~~Operating Partnership~~Transaction 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 Agreement~~Closing Date (if any), as follows: (a) ~~No order preventing or suspending~~ On the ~~use of~~ Effective Date, the ~~Prospectus has been issued by the Commission~~Registration 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 Exchange Act ~~or form~~ and the rules and regulations of ~~prospectus)~~the Commission thereunder. At the Effective Date, ~~(C)~~ at the ~~time~~ date hereof and at the ~~Company or any person acting on its behalf (within the meaning~~Closing Date, 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~~ . 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 thereto~~Offering (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 made~~time 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)(a~~Rule 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 qualification~~electronically transmitted copies thereof filed with the Commission pursuant to 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 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.)

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 Agreement~~that: (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 Commission~~effective, 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 ~~thereto~~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, ~~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 ~~Prospectus~~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 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 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~~Maryland. 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"), ~~earnings~~First Industrial Securities, ~~properties~~L.P. ("Securities, ~~management~~L.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”). (j~~the "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 lease~~authority, 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 ~~qualification~~qualification 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 non~~by-~~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 to~~Underwriters 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 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(q~~2 hereof), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 Date~~omit 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, ~~however~~at 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 hereof~~then amended or supplemented, ~~and any post-effective amendment thereto~~if 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 Date~~will 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 thereto~~preceded 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; ~~provided~~and (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)(a~~Rule 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 Information~~Underwriter 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 ~~405~~405 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 Prospectus~~Statement. (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 ~~Prospectus~~Registration Statement was initially filed with the Commission, except as has been disclosed to the Representatives in ~~writing~~writing 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 Effect~~material 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 Effect~~material 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 Effect~~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~~ 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 Distribution~~Underwriting,” 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 and~~Registration 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 in~~rights 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 ~~hereof~~hereof 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 Commission~~Act, 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 Date~~Shares, 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 hereof~~Time 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)(2~~401(g)(2) ~~and at each Settlement Date~~under 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 thereto~~Shares 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 comply~~Rule 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 ~~405~~405 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 Prospectus~~Statement. (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 Partnership~~related 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(w~~dates 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 issuances~~in 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 any~~executed 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 Agreement~~will be, at the time of execution and delivery thereof, duly authorized, executed and delivered by the Company and, (ii) ~~pursuant to reservations~~assuming the due authorization, ~~agreements~~execution 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.” (q~~equity 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 Agreement~~therefor as provided herein, will be duly and validly ~~issued,~~ issued and fully paid and non-~~assessable~~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; 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 Supplementary~~Company, ~~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 nonassessable~~made 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 to~~the 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

Sources: Equity Distribution Agreement (QualityTech, LP)

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 Agreement~~Additional 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 ~~Prospectus~~Underwriters. 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(c~~434(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)(2~~462(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 ~~Agent~~Registration 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 Prospectus~~or, ~~including~~ if any ~~document incorporated by reference therein that has not been superseded or modified and~~Rule 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 ~~hereof~~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 Agreement~~follows: (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 hereof~~time 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 ~~Company~~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~~ 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~~, ~~directors~~the 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 ~~writing~~the 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 lease~~its 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 qualification~~any 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 ~~assets~~condition, ~~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 lease~~its 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 qualification~~any 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 not~~each Property Partnership have been duly and validly authorized and issued, ~~individually or~~ are fully paid, and (except as described in the ~~aggregate~~Prospectus) are owned directly or indirectly by the Company or the Operating Partnership, ~~have a Material Adverse Effect~~free 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 lease~~own, ~~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 Effect~~qualification 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 ~~accurate~~gully paid and are owned free and clear of security interest, ~~complete and fair summaries of such agreements~~mortgage, ~~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

Sources: Underwriting Agreement (Prime Retail Inc)

Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating ~~Partnership~~Partnership 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~~Underwriter 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 ~~Prospectus~~transactions 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 thereto~~further 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 Date~~when they are filed, ~~complied and will~~ comply in all material respects with the ~~Securities Act~~requirements 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 thereto~~no 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 ~~therein~~therein 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 incorporated~~own, 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 ~~Commission~~conduct 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 Act~~Company 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 representatives~~g) 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 prepared~~case may be, ~~used~~issued 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) ~~below~~have 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 ~~Prospectus~~Prospectus 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 Information~~clear 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 contemplated~~threatened, ~~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 ~~Company~~Subsidiaries 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 filed~~not 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 Authority~~Shares 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 (ii~~which 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 issuances~~or 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 ~~exercise~~Company and its subsidiaries as required by the Act. (n) The financial statements, ~~redemption~~together 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 Stock~~the 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 ~~Prospectus~~Prospectus (or any amendment or supplement thereto), ~~no options~~neither 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 issue~~contingent, or ~~rights to convert~~ entered into any ~~obligations into or exchange any securities for~~transaction, ~~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 ~~NYSE~~Company 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 and~~environment 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 Supplementary~~pollutants 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 statement~~Representatives 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 Statement~~Securities, as of amended at the ~~date hereof~~time 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 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 representatives~~the prospectus subject to completion, ~~other than the Agents in their capacity as such) has not prepared~~if 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)

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 Statement~~Securities 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(c~~415(a)(1)(x) under the ~~Securities Act~~Act 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 ~~405~~462(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 Commission~~Prospectus 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 made~~the Securities Exchange Act of 1934, ~~not misleading; provided~~as amended, ~~however, that the Company~~ and the ~~Operating Partnership make no representation~~ rules and ~~warranty with respect to any Agent Information. The documents incorporated~~regulations promulgated thereunder (the “Exchange Act”), which is or is deemed to be ~~incorporated,~~ incorporated by reference in the Registration ~~Statement and~~ Statement, the ~~Prospectus~~Rule 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 ~~NYSE~~Shares 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~~ MPT Operating Partnership, ~~jointly~~ L.P., a Delaware limited partnership and ~~severally~~majority 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(a~~7(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 issuer~~written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares (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 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 (~~“Rule 405”)).~~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; (cd) ~~The~~ the Registration Statement is an “automatic shelf registration statement” (as defined in under Rule ~~405) and~~ 405 of the Securities ~~have~~ Act that has been filed with the Commission not earlier than three years prior to the date hereof; and ~~remain eligible for~~ 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 Securities Act has been received by the ~~Company on such automatic shelf registration statement. The Registration Statement became effective upon filing with the Commission~~Company. 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 ~~thereto~~thereto 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 ~~Prospectus~~Prospectus 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,~~ 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; ~~provided~~and any further documents so filed and incorporated by reference in the Registration Statement, ~~however~~the 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 405~~f) 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 of the Shares on the Closing Date or any Additional Closing Date, 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 of the Shares on the Closing Date or any Additional Closing Date, as the case may be, the Shares shall be duly listed, and admitted and authorized for ~~listing on the NYSE~~trading, 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, ~~management~~financial 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 the subsidiaries identified on Schedule 2 hereto (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~~ Partnership, L.P., Wichita Health Associates Limited Partnership, MPT West Houston MOB, L.P. and Mountain View-MPT Hospital, LLC, of which the Company owns, directly or indirectly, a majority of the limited partnership units or limited liability company membership interests, as the case may be; 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 lease~~own, ~~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, owns~~majority 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 indirectly~~adverse 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 Agreement~~therefor as provided herein, will be duly and validly issued, fully paid and non-~~assessable~~assessable 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 certificates, if any,~~ material respects to ~~be used to evidence the Placement Shares will be in substantially the form filed as an exhibit to,~~ each description thereof contained or incorporated by reference inin the Registration Statement, the ~~Registration Statement~~ Pricing Disclosure Package and ~~will be~~ the Prospectus; and the certificates for the Shares are in due and proper ~~form~~ form; (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, of delivered by the Company and the ~~requirements~~ Operating Partnership; (m) neither the Company nor any of the Subsidiaries is in breach or violation of or in default under (nor has any event occurred which, with notice, lapse of time or both, would result in any breach or violation of, 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) (A) its respective charter or bylaws, or other organizational documents, or (B) 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 it is a party or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound or affected, or (C) any federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NYSE.), or (E) any decree, judgment or order applicable to the Company or any of the Subsidiaries or any of their respective properties; except with respect to clauses (B) through (E) only for any such breach or violation or default that would not reasonably be expected to have a Material Adverse Effect; (un) ~~The shares~~ the execution, delivery and performance of ~~Common Stock initially issuable upon conversion~~ this Agreement, the issuance and sale 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 toShares,

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,~~ Partnership 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 AgreementUnderwriter that: (a) A registration statement on Form S-3 (File No. 333-52601), with respect to the Shares, including a prospectus, has been prepared by the Company and the Operating Partnership in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations (the "Securities Act Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, has been filed with the Commission and has been declared effective. The registration statement and prospectus may have been amended or supplemented prior to the date of this Agreement; any such amendment or supplement was prepared and filed, and any such amendment filed after the effective date of such registration statement has been declared effective. No stop order ~~preventing or~~ suspending the ~~use~~ effectiveness of the ~~Prospectus~~ registration statement has been ~~issued~~ issued, and no proceeding for that purpose has been instituted or threatened by the Commission. A prospectus supplement (the "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Shares and additional information concerning the Company and its business has been or will be prepared and, together with the prospectus included in the registration statement, will be filed pursuant to Rule 424(b) of the Securities Act Rules and Regulations on or before the second business day after the date hereof (or such earlier time as may be required by the Securities Act Rules and Regulations). The registration statement, as it may have heretofore been amended, is referred to herein as the "Registration Statement," and the final form of prospectus included in the Registration Statement, as supplemented by the Prospectus Supplement, in the form filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Rules and Regulations, is referred to herein as the "Prospectus." Copies of the Registration Statement and the Prospectus, ~~as of its date~~ any amendments or supplements thereto 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 of each amendment thereto) have been delivered to the Underwriter and its counsel. Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System (EDGAR), and such copy shall be identical in content to any Pr▇▇▇▇▇tus delivered to the Underwriter for use in connection with the offering of the Shares to the Trust. (b) Each part of the Registration Statement, when such part became or becomes effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date (as hereinafter defined), conformed or will conform in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations; each part of the Registration Statement, when such part became or becomes effective, or when such part was filed with the Commission, did not or 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 Prospectus and any ~~Settlement~~ amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date, did ~~not, does~~ not ~~and~~ or 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~~except that the foregoing shall not apply to statements in, ~~however~~or omissions from, any such document in reliance upon, and in conformity with, written information concerning the Underwriter that was furnished to the Company ~~and~~ by the ~~Operating Partnership make no representation and warranty with respect to any Agent Information (as defined~~ Underwriter specifically for use 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”))preparation thereof. (c) The ~~Registration Statement is an “automatic shelf registration statement” (as defined~~ documents incorporated by reference 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~~ Statement, the ~~Commission~~Prospectus or any amendment or supplement thereto, ~~and no proceeding for that purpose~~ when they became or ~~pursuant to Section 8A of~~ become effective under the Securities Act ~~against~~ or were or are filed with the ~~Company~~ Commission under the Securities Act or ~~related to~~ the ~~offering~~ Securities Exchange Act 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~~1934, as of amended (the ~~date hereof, and any post-effective amendment thereto~~"Exchange Act"), 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~~the case may be, ~~complied and~~ 2 conformed or will ~~comply~~ conform in all material respects with the requirements of the Securities Act, the Securities Act Rules and ~~did not~~ Regulations, the Exchange Act and/or the rules and ~~will not contain any untrue statement~~ regulations of the Commission under the Exchange Act (the "Exchange Act Rules and Regulations"), as applicable. (d) The consolidated financial statements of the Company, together with the related schedules and notes thereto, in the Registration Statement and Prospectus fairly present the financial condition of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations, changes in financial position, stockholders' equity and cash flows for the periods therein specified, in conformity with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise stated therein). The selected financial and statistical data in the Registration Statement and the Prospectus present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a ~~material fact or omit~~ basis consistent with the financial statements presented therein. In addition, to ~~state a material fact~~ the extent applicable, the pro forma financial statements of the Company, and the related notes thereto, in the Registration Statement and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. No other financial statements are 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, set forth or to be ~~incorporated,~~ incorporated by reference in the Registration Statement ~~and~~ or 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),~~ Rules 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 InformationRegulations. (e) ~~The Company was not an “ineligible issuer” (as defined in Rule 405) as~~ To the best of the ~~eligibility determination date for purposes of Rules 164~~ Company's and ~~433 under~~ the Operating Partnership's knowledge, PricewaterhouseCoopers LLP, whose reports are incorporated by reference in the Registration Statement, are and, during the periods covered by their reports, were independent public accountants as required by the Securities Act ~~with respect to the offering of the Placement Shares contemplated by the Registration Statement~~ and the ~~Prospectus~~Securities Act Rules and Regulations. (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 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~~ do business and is in good standing ~~as a foreign corporation~~ in each jurisdiction in which its ownership or lease of property or the conduct of its business ~~or its ownership or leasing of property~~ requires such ~~qualification,~~ 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 earnings, assets, properties, business, results of operations, or condition (financial or otherwise~~), earnings, properties, management, results of operations or prospects~~ ) of the Company, the ~~Operating Partnership~~ Subsidiaries (as hereinafter defined) and the ~~Subsidiaries~~ GP Entities (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”")), and has full corporate power and authority necessary to own or hold its properties, assets and interests in its subsidiaries, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. Except as disclosed in the Prospectus, the Company owns no direct or indirect material equity or other beneficial interest in any corporation, partnership, joint venture or other business entity. (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 full power and authority to own or lease~~New York, ~~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 limited partnership in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (except where the failure to be so qualified would not have a Material Adverse Effect), and has all partnership power and authority necessary to own or hold its properties, assets and interests in its subsidiaries, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. The Company is the sole general partner of the Operating Partnership. The Second Restated and Amended Agreement of Limited Partnership of the Operating Partnership, as amended (the 3 "Operating Partnership Agreement"), is in full force and effect, and the aggregate percentage interests of the Company, Home Properties Trust, a wholly-owned Maryland real estate trust and qualified REIT subsidiary of the Company (the "QRS"), and the other third-party limited partners in the Operating Partnership are approximately 1%, 62% and 37%, respectively. To the extent the Shares are issued in accordance with this Agreement, (i) the percentage interest of the partners in the Operating Partnership will be adjusted accordingly and (ii) the Company will contribute the proceeds from the sale of the Shares to the QRS, which in turn will contribute such proceeds to the Operating Partnership in exchange for a number of units of limited partner interest equal to the number of Shares issued. (h) The QRS has been duly formed and is validly existing as a real estate trust under the laws of the State of Maryland, is duly qualified to do business in each jurisdiction in which its ownership or ~~leasing~~ lease of property or the conduct of its business requires such ~~qualification~~qualification (except where the failure to be so qualified would not have a Material Adverse Effect), ~~except~~ and has all power and authority necessary to own or hold its assets and to conduct the business in which it is engaged. (i) Each of the consolidated subsidiaries of the Company, including the Operating Partnership and the QRS, are listed on Schedule A hereto (collectively, the "Subsidiaries"). Each of the Subsidiaries has been duly incorporated or formed, as the case may be, and is an existing corporation, general or limited partnership, or other legal entity, as the case may be, in good standing (to the extent ~~that~~ such concept is applicable) under the laws of its jurisdiction of incorporation or formation, as the case may be. Each of the Subsidiaries has full power (corporate and other) and authority to own or hold its properties and to conduct the business in which it is engaged, and is duly qualified or registered to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification or registration, except where the failure to be so qualified or ~~be in good standing would not~~registered, ~~individually or~~ considering all such cases in the aggregate, would not have a Material Adverse Effect. (j) The Company and the Subsidiaries hold general partner or other controlling interests in an aggregate of 168 general or limited partnerships or other entities owning apartment communities and/or other real estate assets (the "GP Entities"). Each of the GP Entities has been duly incorporated or formed, as the case may be, and, to the knowledge of the Company, is an existing corporation, general or limited partnership, or other legal entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be. Each of the GP Entities has full power (corporate and other) and authority to own or hold its properties and to conduct the business in which it is engaged, except where the failure to have such power or authority would not have a Material Adverse Effect. (k) ~~Each “significant subsidiary”~~ All of the issued and outstanding capital stock or ownership interests of each Subsidiary have been duly authorized and are validly issued, fully paid and nonassessable and, except as specified on Schedule B hereto, are wholly-owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (~~as defined in Rule 1-02(w~~l) As of ~~Regulation S-X~~the date hereof, the Company has authorized capital stock consisting of 80 million shares of Common Stock, 10 million shares of preferred stock, par value $0.01 per share, and 10 million shares of excess stock, par value $0.01 per share, of which 24,968,808 shares of Common Stock (excluding any shares of Common Stock to be issued and sold to Cohen & Steers Quality Income Realty Funds, Inc. (the "C&S Sh▇▇▇▇") on or about the date hereof) and 2,150,000 shares of preferred stock are issued and outstanding. All of the issued and outstanding shares of capital stock of the Company ~~other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has~~ have been duly ~~organized~~authorized and are validly 4 issued, ~~is validly existing as a corporation~~fully paid and nonassessable, ~~limited partnership or limited liability company in good standing under~~ conform to 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~~ description thereof in the Registration Statement and the Prospectus and ~~is duly qualified to transact business~~ have been offered and is sold or exchanged by the Company in ~~good standing as a foreign corporation~~compliance with all applicable laws (including, ~~limited partnership or limited liability company~~without limitation, 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 Effectfederal and state securities laws). ~~All~~ None of the ~~issued~~ outstanding shares of capital ~~stock, units of limited partnership interest and units of membership interest of each Subsidiary~~ stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company. The stockholders of the Company and the holders of interests in the Operating Partnership have ~~been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance~~ no preemptive rights with ~~applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in~~ respect to the ~~Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all~~ issuance 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 takenShares. (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 authorizationShares will be, ~~execution and delivery by it of this Agreement and the consummation by it~~ as 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 Closing Date, duly authorized ~~and duly executed~~ by the Company for issuance 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, sale 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 Agreement 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 therefor specified herein, will be validly issued, fully paid and nonassessable. The Shares conform to the description thereof in the Registration Statement and the Prospectus. (n) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no change in the earnings, assets, properties, business, results of operations, or condition (financial or otherwise) of the Company, the Subsidiaries and the GP Entities, taken as a whole, which has had or would reasonably be expected to have a Material Adverse Effect, (B) there has been no casualty, loss, condemnation or other adverse event with respect to any property or interest therein owned, directly or indirectly, by the Company or any Subsidiary which has had or would reasonably be expected to have a Material Adverse Effect, (C) there have been no transactions entered into by the Company or any Subsidiary, other than those in the ordinary course of business, which are material with respect to the Company and the Subsidiaries, taken as a whole, (D) except for regular quarterly distributions on the Common Stock which have been publicly announced through the date of this Agreement, regular quarterly distributions on the Company's preferred stock and regular quarterly distributions on the common and preferred units of the Operating Partnership, 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 any distribution by the Operating Partnership with respect to its common or preferred units, and (E) there has been no material increase in long-term debt or decrease in the ~~issuance~~ capital of ~~such shares~~ the Company, the Subsidiaries or the GP Entities, taken as a whole, other than in the ordinary course of ~~Common Stock will~~ their businesses. (o) Except as set forth in the Prospectus, there is not ~~be subject to~~pending or, to the knowledge of the Company, threatened any litigation, action, suit or proceeding to which the Company or any of the Subsidiaries or any of their officers or directors is a party, or that any of t

Appears in 1 contract

Sources: Underwriting Agreement (Home Properties of New York Inc)

Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating ~~Partnership,~~ Partnership jointly and ~~severally~~severally represent, ~~represent~~ warrant and ~~warrant to~~ covenant with 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 order preventing or suspending~~ The conditions for the use of a registration statement on Form S-3 set forth in the ~~Prospectus~~ General Instructions on Form S-3 have been satisfied and the Company is entitled to use such form for the transactions contemplated herein. The Registration Statement (Registration No. 333-24637) on Form S-3 relating to the Shares, including a Prospectus, has been ~~issued~~ carefully prepared by the Company in conformity with the requirements of the Act, has been filed with the Commission, and has become effective. Such Registration Statement and Prospectus may have been amended or supplemented prior to the date of this Agreement; any such amendment or supplement was so prepared and filed, and any such amendment filed after the effective date of such registration statement has become effective. No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. Copies of such Registration Statement and Prospectus, any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement have been delivered or made available to the Underwriters. A Prospectus Supplement setting forth the terms of the Common Shares and of their sale and distribution has been or will be so prepared and will be filed pursuant to Rule 424(b) of the Act on or before the second business day after the date hereof (or such earlier time as may be required by the Act). (i) Each part of the Registration Statement and any amendment thereto, when such part became effective or becomes effective on the date of the filing thereof with the Commission and at the Closing Date, and if later, the Option Closing Date, including the financial statements included or to be included or incorporated by reference or to be incorporated by reference into the Prospectus, ~~as of its date and as~~ (A) complied or will comply in all material respects with the requirements of the ~~date of any amendment~~ Act or ~~supplement~~ the Exchange Act, as applicable, and ~~on any Settlement Date~~contained or will contain all statements required to be stated therein in accordance with the Act or the Exchange Act, as applicable, and (B) did ~~not, does~~ not ~~and~~ or 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, the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)~~. (ii) The Prospectus and any amendment or supplement, if applicable, on the date of the filing thereof with the Commission and at the Closing Date, and if later, the Option Closing Date, (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 complied 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~~ requirements of the Act, and ~~did not and~~ contained or will ~~not~~ contain ~~any untrue statement of a material fact or omit to state a material fact~~ all statements required to be stated therein in accordance with the Act, and (B) did not 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~~ 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 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~~ Each Preliminary Prospectus on the ~~Registration Statement and~~ date of the ~~Prospectus,~~ filing thereof with 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)(a) of the Securities Act or~~ Rule ~~134~~ 424 under the ~~Securities Act or~~ Act, (iiA) ~~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)~~Act, and contained all statements required to be stated therein in accordance with the Act, and (B) 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 Company and the Operating Partnership make no representation and warranty with respect to any Agent Information~~. (ev) 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~~ documents incorporated by reference or to ~~the offering of the Placement Shares contemplated~~ be incorporated by reference into the Registration ~~Statement and~~ Statement, the ~~Prospectus. (f) The Placement Shares have been authorized for listing on the NYSE~~Prospectus or any amendment or supplement thereto or from which information is so incorporated by reference, ~~subject to official notice of issuance and the Company is in material compliance~~ when they became effective or become effective or were or are filed 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 leaseCommission, as the case may be, ~~its property~~ complied or will comply in all material respects with the requirements of the Act or the Exchange Act, as applicable. (vii) The foregoing representations and warranties in this Section 6(b) do not apply to ~~operate its property~~ any statements or omissions made in reliance on and ~~conduct its business as described~~ in conformity with information relating to the Underwriters furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement, Prospectus, Preliminary Prospectus or any amendment or supplement thereto. The Company acknowledges that the statements set forth under the caption "Underwriting" in the Prospectus constitute the only information relating to any Underwriter furnished in writing to the Company by you on behalf of the Underwriters expressly for inclusion in the Registration Statement or the Prospectus. The Company has not distributed 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. (c) The financial statements, together with the related schedules and notes thereto, forming part of, incorporated by reference into, or to be incorporated by reference into the Registration Statement or 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~~ any amendment 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 otherwisesupplement thereto), ~~earnings, properties, management, results of operations or prospects~~ present fairly the consolidated financial position of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined) and the results of operations and cash flows of the Company, the Operating Partnership and the Subsidiaries on the basis stated in the Registration Statement or the Prospectus at the respective dates or for the respective periods to which they apply; such financial statements and related schedules and notes 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 or the Prospectus (and any amendment or supplement thereto) present fairly the information required to be stated therein; the summary financial and statistical information and data included, incorporated by reference into, or to be incorporated by reference into, the Registration Statement or the Prospectus (and any amendment or supplement thereto) present fairly the information shown therein and have been compiled on a basis consistent with the financial statements presented therein. No other financial statements (or schedules) of the Company, any predecessor of the Company or any other entity or business are required by the Act or the Exchange Act to be included in the Registration Statement or the Prospectus. Deloitte & Touche LLP (the "Accountants"), ~~taken~~ who have reported on and certified certain of such financial statements and schedules, are independent accountants with respect to the Company as ~~a whole, or (ii) prevent or materially interfere~~ required by the Act. The statements included in the Registration Statement with ~~consummation~~ respect to the Accountants pursuant to Rule 509 of Regulation S-K of the ~~transactions contemplated hereby (~~Act are true and correct in all material respects. The pro forma financial statements of the ~~occurrence of any such effect, prevention, interference or result described~~ Company included in the ~~foregoing clauses (i) or (ii) being herein referred~~ Registration Statement and the Prospectus, if any, comply in all material respects with the applicable requirements of Rule 11-02 of Regulation S-X of the Act and the pro forma adjustments have been properly applied to ~~as a “Material Adverse Effect”)~~the historical amounts in the compilation of such statements. (jd) The ~~Operating Partnership~~ Company has been duly ~~organized,~~ formed and is validly existing as a ~~limited partnership~~ REIT with transferable shares of beneficial interest under the laws of the State of Texas, with power and authority to own, lease or operate its properties and conduct its business as described in the Prospectus, and is qualified for the transaction of business and is in good standing under the laws of each other jurisdiction in which it currently owns property, or conducts any business, so as to require such qualification, except where the ~~State~~ failure to be so qualified or in good standing does not have a material adverse effect on the business, properties, financial position or results of ~~Delaware~~ the Company, the Operating Partnership and the Subsidiaries, taken as a whole. Complete and correct copies of the charter documents and the by-laws of the Company and all amendments thereto have been previously delivered to you, and no changes therein will have been made subsequent to the date hereof and prior to the Closing Date or, if later, the Option Closing Date. Except for stock or partnership interests of the Operating Partnership and the Subsidiaries or as described in the Registration Statement or Prospectus, the Company does not own, and at the Closing Date will not own, directly or indirectly, any equity or other interest in, or rights to acquire, an equity or other interest in any corporation, partnership, trust, joint venture or other entity. The only subsidiaries (as defined in the Act) of the Company are the other entities identified on Exhibit B hereto (the "Subsidiaries") and the Operating Partnership. Each Subsidiary and the Operating Partnership has ~~the~~ full power and authority to ~~own or lease~~own, ~~as the case may be, its property~~ lease and to operate its ~~property~~ properties and conduct its business as described in the Registration Statement and the ~~Prospectus~~ Prospectus, have been duly organized and is are validly existing as corporations or limited partnerships, as the case may be, under the laws of their states of organization, and have been duly qualified ~~to transact business and~~ as foreign corporations or limited partnerships, as the case may be, for the transaction of business, and, if applicable, is in good standing ~~as a foreign limited partnership in~~ under the laws of each jurisdiction in which ~~the~~ they own or lease properties or conduct ~~of its~~ business ~~or its ownership or leasing of property requires~~ so as to require 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,~~ does not have a ~~Material Adverse Effect. (k) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X)~~ material adverse effect on the business, properties, financial position or results of the ~~Company other than~~ Company, the Operating Partnership ~~(each a “Subsidiary”~~ and ~~collectively~~ the “Subsidiaries~~”) has been duly organized~~, ~~is validly existing~~ taken as a ~~corporation, limited partnership or limited liability company~~ whole. Except for investments 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 securities as described in the Registration Statement or Prospectus, neither the Operating Partnership nor the Subsidiaries have equity or other interest in, or rights to acquire, an equity or other interest in any corporation, partnership, trust, joint venture or other entity. Complete and correct copies of the charter documents and the ~~Prospectus~~ by-laws of the Operating Partnership and ~~is duly qualified~~ each Subsidiary and all amendments thereto have been previously delivered to ~~transact business~~ you, 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 no changes therein will have been made subsequent to the ~~extent that~~ date hereof and prior to the ~~failure to be so qualified or be in good standing would not have a Material Adverse Effect.~~ Closing Date or, if later, the Option Closing Date. (e) All of the ~~issued~~ outstanding shares of ~~capital stock, units of limited partnership~~ beneficial interest ~~and units of membership interest of each Subsidiary~~ of the Company ~~or the Operating Partnership~~ have been duly ~~authorized~~authorized and validly issued and are fully paid, ~~are validly issued, fully paid and~~ non-~~assessable, have been issued in compliance with applicable securities laws~~ assessable and ~~were~~ not ~~issued in violation of~~ subject to 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 to the Underwriters against payment ~~therefore in accordance with the terms of~~ therefor as provided 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~~ All the outstanding OP Units and all the outstanding shares of capital stock or limited partnership units of each Subsidiary, as the ~~purchase price~~ case may be, has been duly authorized and ~~issuance~~ validly issued, and ~~delivery of~~ except as otherwise disclosed in the ~~Placement Shares to be issued and sold~~ Registration Statement or Prospectus, is owned by the ~~Company in accordance herewith~~Company, ~~the purchasers thereof will receive good, valid and marketable title to such Placement Shares~~directly or indirectly through one or more Subsidiaries, free and clear of ~~all Liens~~any security interest, claim, lien, encumbrance or adverse interest of any nature. The ~~certificates, if any, to be used to evidence~~ description of the ~~Placement~~ Common Shares ~~will be~~ and the OP Units in ~~substantially the form filed as an exhibit to, or incorporated by reference in,~~ the Registration Statement and the Prospectus is, and at the Closing Date will ~~be in proper form and will comply~~ be, in all material ~~respects with all applicable legal requirements~~respects, complete and accurate. Except as set forth in the Prospectus, the ~~requirements~~ Company does not have outstanding, and at the Closing Date will not have outstanding, any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of Common Stock, OP Units, any shares of capital stock of or limited partnership interest in any Subsidiary or any such warrants, convertible securities or obligations. (f) None of the ~~Articles~~ Company, the Operating Partnership and the Subsidiaries are in violation of ~~Amendment~~ its respective charter or by-laws or in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, deed of trust, lease or other agreement or instrument that is material to the Company, the Operating Partnership and ~~Restatement~~the Subsidiaries, taken as a whole, to which the Company, the Operating Partnership or any Subsidiary is a party, or by which the Company, the Operating Partnership, any Subsidiary or their respective property is bound. (g) The Company and the Operating Partnership have full corporate or partnership power and authority, as ~~amended or supplemented through~~ applicable, to enter into this Agreement. This Agreement has been duly authorized, executed and delivered by the ~~date hereof (~~Company and the ~~“Charter”),~~ Operating Partnership and ~~Bylaws, as amended,~~ constitutes a valid and binding agreement 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 Operating Partnership and is enforceable against each in accordance with the terms hereof, except that the enforceability thereof may be limited by or subject to (i) bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar laws now or hereafter existing which affect the rights and remedies of creditors generally, and (ii) equitable principles of general applicability, and except as rights to indemnity and contribution hereunder may be limited by applicable law. The performance of this Agreement and the consummation of the ~~Articles Supplementary~~transactions contemplated hereby and will not (i) conflict with or constitute a breach of any of the terms or provisions of, ~~will be validly issued~~or a default under or result in the creation or imposition of any lien, ~~fully paid and nonassessable~~charge or encumbrance upon any of the assets of the Company, the Operating Partnership or the Subsidiaries pursuant to the terms or provisions of, the charter or by-laws of the Company, the Operating Partnership or any Subsidiary or any indenture, loan agreement, mortgage, deed of trust, lease or other agreement or instrument that is material to the Company, the Operating Partnership and the ~~issuance~~ Subsidiaries, taken as a whole, to which the Company, the Operating Partnership or any Subsidiary is a party or by which the Company, the Operating Partnership or any Subsidiary or their respective property is bound or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject, or (ii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, the Operating Partnership, any Subsidiary or their respective property. (h) No consent, approval, authorization, registration or other order of, or qualification with, any court or governmental body or agency is required for the consummation by the Company of the transactions on its part herein contemplated, except such ~~shares~~ as have been obtained under the Act and such as may be required under state securities or Blue Sky laws or the by-laws and rules of ~~Common Stock will not~~ the National Association of Securities Dealers, Inc. in connection with the purchase and distribution by the Underwriters of the Shares. (i) Other than as set forth or contemplated in the Registration Statement or Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company, the Operating Partnership or any Subsidiary is or could be a party or to which any of their respective property is or could be subject towhich, if determined adversely to the Company, the Operating Partnership or any Subsidiary, could individually or in the aggregate, reasonably be expected to have a material adverse effect on the general affairs, business, prospects, management, properties, financial position, shareholders' equity or results of operations of the Company and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; nor are there any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Re

Appears in 1 contract

Sources: Underwriting Agreement (Camden Property 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 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 the ~~time of each sale of any Placement Shares pursuant to this Agreement~~case may be: (a) No The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement has been filed with the Commission and has been declared effective under the Securities Act. The Company has prepared or will prepare the Prospectus Supplement that names CF&Co as an underwriter, acting as principal and/or agent, in the section entitled “Plan of Distribution.” The Company has not received, and has no knowledge of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose. Any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed. The Prospectus Supplement has been ~~issued by~~ so prepared and will be filed pursuant to Rule 424(b) of the ~~Commission~~Securities Act within the time period prescribed therein. Copies of the Registration Statement, ~~and~~ the Prospectus, as and any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement have been delivered, or made available, to CF&Co and its counsel. The Common Stock is currently listed on the Exchange under the trading symbol “HT.” (b) The Prospectus delivered to CF&Co for use in connection with the offering of 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. (c) Each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment thereto, at the time it became effective, at each deemed effective date with respect to CF&Co pursuant to Rule 430B(f)(2) of the Securities Act, and as of each Applicable Time, as the ~~date~~ case may be, 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, any Rule 462(b) 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 use therein, it being understood and agreed that the only such information furnished by CF&Co consists of the information described as such in Schedule 4 hereto. (d) 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, each Applicable Time, 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~~. The preceding sentence does not apply to statements in or omissions from the Prospectus, ~~however~~as amended or supplemented, in reliance upon and in conformity with written information relating to CF&Co furnished to the Company in writing by CF&Co expressly for use therein, it being understood and agreed that the ~~Operating Partnership make no representation and warranty~~ only such information furnished by CF&Co consists of the information described as such in Schedule 4 hereto. (e) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was 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 Statement~~such 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 prospectus~~filed), (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 Act~~requirements of the Exchange Act and the rules and regulations thereunder, and ~~did not~~ any further documents so filed and ~~will not contain~~ 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 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 thereto~~no such 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 ~~therein~~therein not misleading. (f) Each issuer free writing prospectus (as defined in Rule 433), in as of its issue date and at all subsequent times through the ~~light~~ completion of the ~~circumstances under which they were made, not misleading; provided, however,~~ public offer and sale of the Shares or until any earlier date that the Company ~~and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated~~notifies CF&Co in writing, 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 written information furnished to 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 Company by CF&Co specifically for use therein, in it being understood and agreed that the ~~light~~ only such information furnished by CF&Co consists 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” (information described as ~~defined~~ such 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 NYSESchedule 4 hereto. (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 and outstanding shares of ~~capital stock, units of limited partnership~~ beneficial interest ~~and units of membership interest of each Subsidiary~~ of the Company ~~or the Operating Partnership~~ have been duly ~~authorized, are~~ authorized and validly issued, are fully paid and ~~non-assessable,~~ nonassessable and have been issued in compliance with applicable federal and state securities ~~laws and~~ laws. None of the outstanding shares of beneficial interest of the Company were ~~not~~ issued in violation of any preemptive rights, rights of first refusal or other 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 ; 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~~ similar rights to ~~purchase~~subscribe for, ~~agreements~~ or ~~other~~ contractual obligations to issue, sell, transfer or ~~rights to convert~~ acquire, any ~~obligations~~ shares of beneficial interest of the Company or any securities convertible into or ~~exchange~~ exchangeable for 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~~ beneficial interest; 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 free of any preemptive rights, rights of first refusal or other or similar rights; and the ~~issuance~~ shares of ~~such~~ beneficial interest of the Company, including the Placement Shares, conform to the description thereof contained in the Prospectus. The certificates for the Placement Shares are in due and proper form and the holders of the Shares will not be subject to personal liability by reason of being such a holder. (h) Immediately after the transactions contemplated by this Agreement, all of the issued and outstanding Common Units and Preferred Units (each, as defined below) will have been or will be validly issued and fully paid and non-assessable. 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”) will have been issued in violation of any preemptive right, right of first refusal or other similar ~~rights. Upon payment~~ right; and the outstanding Common Units and Preferred Units have been offered, sold and issued by the Operating Partnership in compliance with applicable federal and state securities laws. (i) The Company does not own or control, directly or indirectly, any corporation, association or other entity other than (i) the subsidiaries that are listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the most recently ended fiscal year and (ii) those subsidiaries formed since the last day of the ~~purchase price~~ most recently ended fiscal year (each a “Subsidiary” and ~~issuance~~ collectively, the “Subsidiaries”). (j) Each of the Company and the Subsidiaries that are consolidated with the Company in the Company’s financial statements in accordance with generally accepted accounting principles (the “Consolidated 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, results of operations or prospects of the Company and the Consolidated Subsidiaries, taken as a whole (a “Material Adverse Effect”). (k) The outstanding equity interests of, or other ownership interests in, each of the Consolidated Subsidiaries have been duly authorized and validly issued, are fully paid and, except as to Consolidated Subsidiaries that are partnerships or limited liability companies, nonassessable and are, or will be, owned by the Company, directly or indirectly, free and clear of any security interest, lien, encumbrance or claim. (l) 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 any Consolidated Subsidiary, 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 Consolidated Subsidiary is a party have been duly authorized, executed and delivered by the Company or the applicable Consolidated Subsidiary, constitute valid and binding agreements of the Company or the applicable Consolidated Subsidiary and are enforceable against the Company or the applicable Consolidated 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 any Consolidated Subsidiary has received written notice or been made aware that the Company or any Consolidated Subsidiary is in breach of or default under any such contracts to which it is a party. (m) Neither the Company nor any Consolidated Subsidiary 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 Consolidated Subsidiary, 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 Consolidated Subsidiary; or (ii) in default in any material respect in the performance of any obligation, agreement or condition contained in (x) any bond, debenture, note or any other evidence of indebtedness or (y) any agreement, indenture, lease or other instrument (each of (x) and (y), an “Existing Instrument”) to which the Company or any Consolidated Subsidiary is a party or by which any of its 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 Consolidated Subsidiary 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. (n) Each of the Company and the Operating Partnership has 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 Placement Shares as provided herein and the Operating Partnership’s issuance of the Common Units to ~~be issued~~ the Company. The Company’s and ~~sold~~ the Operating Partnership’s execution and delivery of this Agreement and the performance by the Company ~~in accordance herewith~~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, ~~the purchasers thereof will receive good,~~ and constitutes a 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, legally binding agreement of the Company and the ~~requirements~~ 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 (regardless of whether enforcement is sought in a proceeding in equity or at law) and (ii) equitable principles being applied at the ~~NYSE~~discretion of a court before which any proceeding may be brought, and except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws. (uo) The ~~shares~~ Amended and Restated Agreement of ~~Common Stock initially issuable upon conversion~~ Limited Partnership of the ~~Series D Preferred Stock have~~ Operating Partnership, including all amendments thereto (the “Partnership Agreement”), has been duly ~~authorized and~~and validly authorized, ~~when issued upon conversion~~ executed and delivered by the general partner of the ~~Series D Preferred Stock~~ Operating Partnership and constitutes a valid and binding agreement of the general partner, enforceable in accordance with its terms, except to the ~~terms~~ extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors' rights or by general equity principles. (p) No consent, approval, authorization, order, license, certificate, permit, registration, designation or filing by or with any governmental agency or body is required for the execution, delivery and performance by the Company and the Operating Partnership of their respective obligations under this Agreement and the consummation by the Company and the Operating Partnership of the ~~Articles Supplementary~~transactions contemplated hereby, ~~will~~ including the valid authorization, issuance, sale and delivery of the Placement Shares, except such as have been obtained or made and may be ~~validly issued~~required by (i) the Exchange and (ii) the securities or Blue Sky laws of the various states in connection with the offer and sale of the Placement Shares. (q) Neither the issuance and sale of the Placement Shares by the Company, ~~fully paid and nonassessable~~the execution, delivery or performance of this Agreement by the Company and the ~~issuance~~ Operating Partnership nor the consummation by the Company and the Operating Partnership of ~~such shares~~ the transactions contemplated hereby (i) conflicts with or will conflict with or constitutes or will constitute a breach of, or a default under, the Company's declaration of ~~Common Stock will not be subject to~~trust, as amended or supplemen

Appears in 1 contract

Sources: Sales Agreement (Hersha Hospitality Trust)

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 Agent that: (a) An “automatic shelf registration statement” (the ~~Agent~~ “registration statement”) as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively called the “Act”), 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 (collectively, the “Exchange Act”), certain information concerning the offering and sale of the Common Stock, including the Shares, and contains or incorporates by reference additional information concerning the Company and its business; the Commission has not issued an order preventing or suspending the use of the Basic Prospectus (as defined below), the Prospectus Supplement (as defined below), the Prospectus (as defined below) or any Permitted Free Writing Prospectus (as defined below), 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 Company’s or the Operating Partnership’s knowledge, threatened by the Commission. 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 ~~hereof~~of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date hereof (or such earlier time as may be required under the Act), in the form furnished by the Company to the Agents in connection with the offering of the 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 Company for use in connection with the offering and sale of Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference. (b) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to the Agents pursuant to Rule 430 (B)(f)(2) of the Act, and at each Settlement Date (as defined in Section 3(a)(vi) hereof) and on each Representation Date (as defined ~~below~~in Section 4(p)) ~~on which~~ will comply, in all material respects, with the requirements of 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 conditions to the use of Form S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of the time of each sale of ~~any Placement~~ Shares pursuant to this ~~Agreement:~~ Agreement (~~a) No order preventing or suspending~~ each, a “Time of Sale”), at each Settlement Date and on each Representation Date, will comply, in all material respects, with the ~~use~~ requirements of the ~~Prospectus has been issued by~~ Act; on each Representation Date and each Settlement Date, the ~~Commission, and the~~ Basic Prospectus, as ~~of its date and as of the date of any amendment~~ then amended or ~~supplement and on any Settlement Date~~supplemented, did ~~not, does~~ 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,~~ 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 comply, as of the date ~~hereof~~that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Representation Date 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~~ respects, with the ~~Securities~~ requirements of the Act (including, without limitation, Section 10(a) of the Act); on each Representation Date, ~~and did not and~~ the Prospectus, as then amended or supplemented, will ~~not contain~~ not, either alone or 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 ~~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~~ each Permitted Free Writing Prospectus will comply, as of its date, as of each Time of Sale, each Representation Date and each Settlement Date, in all material respects with the requirements of the Act; on the date of each Permitted Free Writing Prospectus, such Permitted Free Writing Prospectus will not include any information that will conflict with any information contained in the Registration Statement, the Prospectus ~~and~~ or any ~~amendment~~ Incorporated Document, except as a result of changes subsequent to the filing of such documents, or ~~supplement thereto, 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 Company and the Operating Partnership make no representation ~~and~~ or warranty with respect to any ~~Agent Information. The documents incorporated, or to be incorporated, by reference~~ statement contained in the Registration ~~Statement~~ Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning any Agent and furnished in writing by or on behalf of such Agent expressly for use in the Registration Statement, the Basic Prospectus, 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~~Commission or at the time such document became effective, ~~complied or will comply~~as applicable, complied, in all ~~respects to~~ material respects, with 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 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~~. For all purposes of this Agreement (including, ~~however~~without limitation, ~~that~~ the ~~Company~~ provisions of this paragraph and of Section 7 of this Agreement), the Company, the Operating Partnership ~~make no representation~~ and ~~warranty with respect~~ each Agent agree that the only information furnished or to be furnished by or on behalf of such Agent expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus or any amendment or supplement to any of the foregoing is the legal name of each Agent ~~Information~~and the last sentence in the first paragraph under the section titled “Plan of Distribution (Conflicts of Interest).” (c) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 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), (iii) at the time the Company made any offer relating to the Shares in reliance on the exemption of Rule 163 of the Rules and Regulations and (iv) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the Rules and Regulations (“Rule 405”). The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on 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 Rules and Regulations objecting to the use of the automatic shelf registration statement form. (ed) ~~The~~ Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” or “free writing prospectus” (in each case within the meaning of the Act) or used any “prospectus” or “free writing prospectus” (in each case within the meaning of the Act) in connection with the offer or sale of the Shares, and from and after the execution of this Agreement, the Company will not, directly or indirectly, offer or sell any Shares by means of any “prospectus” or “free writing prospectus” (in each case within the meaning of the Act) or use any “prospectus” or “free writing prospectus” (in each case within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Prospectus, as amended or supplemented from time to time in accordance with the provisions of this Agreement, and any Permitted Free Writing Prospectuses; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act; assuming that any 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), the sending or giving, by each Agent, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); 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 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 Act, satisfies the requirements of Section 10 of the Act; neither the Company nor any Agent is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Company is not an “ineligible issuer” (as defined in Rule ~~405~~405 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 are “issuer free writing prospectuses” as defined in Rule 433 of the Act. (e) As of December 31, 2018, the Company has an authorized and outstanding capitalization as set forth in the consolidated balance sheet as of December 31, 2018 or as of the Company’s then most recently completed quarter or fiscal year, contained in the Company’s Quarterly Report on Form 10-Q or the Company’s Annual Report on Form 10-K, as applicable, at the indicated date, and, except as described in the Registration Statement and the Prospectus, there has been no material change in such information since December 31, 2018 or the Company’s then most recently completed quarter or fiscal year (subject to the issuance of shares of Common Stock upon exercise of stock options and warrants, or upon exchange of units of limited partnership interest of the Operation Partnership (“OP Units”), disclosed as outstanding in the Registration Statement (excluding the exhibits thereto) and the Prospectus and the grant of options under existing stock option plans described in the Registration Statement (excluding the exhibits thereto), the Basic 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 with the rules~~ All of the ~~NYSE~~issued and outstanding shares of capital stock, ~~including, without limitation, the requirements for continued listing of the Common Stock,~~ including the Company~~'s 9.25~~’s 7.25% 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~~ Common Stock ~~on the NYSE~~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 ~~there are no actions~~were not issued in violation of any preemptive right, ~~suits~~ resale right, right of first refusal 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 NYSEsimilar right. (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~~ 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 Prospectus and the Permitted Free Writing Prospectuses, if any, and, in the case of the Company and the Operating Partnership, 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~~ not, individually or in the aggregate, (i) have a material adverse effect on the ~~assets,~~ business~~, condition (financial or otherwise), earnings~~, properties, ~~management~~financial 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”). (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~~ result 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 delisting 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~~ or 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 AgreementUnderwriters that: (a) No The Company meets the requirements for use of Form S-3 under the Act. Neither the Commission nor any state or other jurisdiction or other regulatory body has issued, and neither is, to the knowledge of the Company, threatening to issue, any stop order under the Act or other order suspending the effectiveness of the Registration Statement (as amended or supplemented) or preventing or suspending the use of any Issuer Free Writing Prospectus, the Disclosure Package or the Prospectus ~~has been issued by~~ or suspending the ~~Commission~~qualification or registration of the Shares for offering or sale in any jurisdiction nor instituted or, to the knowledge of the Company, threatened to institute proceedings for any such purpose. The Disclosure Package at its date of issue and as of 7:00 p.m. Eastern time on the date hereof (the "Initial Time of Sale"), the Registration Statement at each effective date (or deemed effective date), and the ~~Prospectus~~Prospectus and any amendments or supplements thereto when they are filed with the Commission contain or will contain, as the case may be, all statements which are required to be stated therein by, and in all material respects conform or will conform, as the case may be, to the requirements of the Act. Neither the Registration Statement nor any amendment thereto, as of ~~its date and~~ the applicable effective date, contains or will contain, as of the ~~date of any amendment or supplement and on any Settlement Date~~case may be, ~~did not, does not and will not contain~~ any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading. Neither the Prospectus nor any supplement thereto contains as of the date of such Prospectus or supplement or will contain as of the date of such supplement, as the case may be, any untrue statement of a material fact or omits or will omit to state 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, however,~~ . Neither 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) Disclosure Package at the ~~time~~ Initial Time of ~~the most recent amendment~~ Sale contains nor any supplement 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) will contain 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 of 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 Statementsupplement, as of the ~~date hereof~~case may be, 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 omits or will 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~~. Notwithstanding the foregoing, ~~however~~the Company makes no representation or warranty as to information contained in or omitted from the Registration Statement, the Disclosure Package or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company relating to the Underwriters by or on behalf of the Underwriters expressly for use in the preparation thereof (as provided in Section 12 hereof). There is no contract, agreement, understanding or arrangement, whether written or oral, or document required to be described in the Registration Statement, Disclosure Package or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. (b) The Company is eligible to use Issuer Free Writing Prospectuses in connection with the offering of the Shares pursuant to Rules 164 and 433 of the Act. Any Issuer Free Writing Prospectus that the Company ~~and~~ is required to file pursuant to Rule 433(d) of the ~~Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated~~Act has been, or ~~to be incorporated~~will be, ~~by reference in the Registration Statement and the Prospectus, at the time~~ timely filed with the ~~Commission, complied or will comply,~~ Commission in ~~all respects to~~ accordance with 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 . Each Issuer Free Writing Prospectus ~~(other than as referred~~ that the Company has filed, or is required to ~~in clause (i) below) other than (i) any document not constituting a prospectus~~ file, pursuant to ~~Section 2(a)(10)(a~~Rule 433(d) of the ~~Securities~~ Act or ~~Rule 134 under the Securities Act~~ that was prepared by or ~~(ii) each electronic road show and any other written communications approved in writing in advance~~ on behalf of or used by the ~~Agent. Each such Issuer Free Writing Prospectus complied and~~ Company complies or will comply in all material respects with the ~~Securities Act (~~requirements of the Act, including but not limited to ~~the extent required thereby)~~legending requirements. The Company has not prepared, used or referred to, and will not, without the Underwriters' prior written consent, prepare, use or refer to any Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all times through the completion of the 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 Prospectus. The Company filed the Registration Statement with the Commission before using any Free Writing Prospectus. (c) All disclosures contained in the Registration Statement or the ~~Prospectus~~Prospectus regarding "non-GAAP financial measures" (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act, ~~including~~ and Item 10 of Regulation S-K under the Act, to the extent applicable. (d) The Incorporated Documents when they were filed (or, if any amendment with respect to any such document ~~incorporated by reference therein that has not been superseded or modified and~~was filed, when ~~taken together~~ such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, any Incorporated Documents filed after the date hereof and during the Prospectus ~~accompanying~~Delivery Period 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 contained 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 required to be stated therein or necessary ~~in order~~ to make the statements ~~therein~~therein not misleading in light of the circumstances under which they were made; and, when read together and with the other information in each of the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or shall be deemed effective, at the Initial Time of Sale and at the Closing Date or the Delivery Date, as applicable, each such Incorporated Document did not or will not, as the case may be, 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, 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,~~ formed and is validly existing as a ~~corporation in good standing~~ real estate investment trust 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 Maryland 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 Department of ~~Delaware has the~~ Assessments and Taxation of Maryland with full trust 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~~ Prospectus. The Company is duly qualified to ~~transact~~ do 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” corporation 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 each jurisdiction which requires such qualification except where the ~~jurisdiction~~ failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries (as defined below), taken as a whole, whether or not arising from transactions in the ordinary course of business (a "Material Adverse Effect"). Other than the entities listed on Exhibit 21.01 to the Company's Annual Report on Form 10-K for the year ended December 31, 2005, as amended, Windrose Capital Trust I, and any other subsidiary formed during 2006 to date for the purpose of acquisitions, whether or not completed (individually a "Subsidiary" and collectively the "Subsidiaries" and for all purposes of this Agreement, shall include the Operating Partnership), the Company does not own, directly or indirectly, any capital stock or other equity securities or interests of any corporation, partnership, limited liability company, joint venture association or other entity. (f) Each Subsidiary has been duly organized and is validly existing as a limited partnership, limited liability company or corporation in good standing under the laws of its state of organization, ~~has the full~~ with all requisite power and authority to own ~~or lease~~and lease its properties, ~~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 qualificationProspectus, except ~~to the extent that the~~ where one or more Subsidiary's failure to be ~~so qualified or be~~ duly organized, validly existing and in good standing would not have a Material Adverse Effect. ~~All~~ Each Subsidiary has qualified to do business and is in good standing as a foreign limited partnership, limited liability company or corporation in every jurisdiction in which the ownership or leasing of its properties or the nature or conduct of its business, as described in the Prospectus, requires such qualification except where the failure to be so qualified would not have a Material Adverse Effect. (g) The authorized, issued and outstanding shares of ~~capital stock, units of limited partnership~~ beneficial interest ~~and units of membership interest of each Subsidiary~~ of the Company or as of December 31, 2005 are as set forth in the ~~Operating Partnership~~ Prospectus under the caption "Capitalization." All the issued and outstanding Common Shares of the Company, including the Shares to be sold by the Company, have been duly ~~authorized, are~~ authorized and validly issued, and are, or when issued against payment therefor as authorized by the Company's Board of Trustees will be, fully paid and non-assessable~~, have been issued~~ . The Common Shares of the Company conform in ~~compliance with applicable securities laws~~ all material respects to the description of the Common Shares contained in the Registration Statement and the Prospectus. All offers and sales of the Company's Common Shares prior to the date hereof were at all relevant times duly registered under the Act or were exempt from the registration requirements of the Act and were ~~not~~ duly registered or the subject of an available exemption from the registration requirements of the applicable state securities or blue sky laws. No preemptive rights of shareholders exist with respect to any of the Shares under the Maryland General Corporation Law, the Declaration of Trust (as hereinafter defined) or the bylaws of the Company. No person or entity has a right of participation or first refusal with respect to the sale of the Shares by the Company. None of the issued shares of beneficial interest of the Company has been issued in violation of any preemptive or similar rights. Except as ~~disclosed~~ described in the Registration Statement, the Prospectus and the proxy statement for the Company's 2006 annual meeting of shareholders, (i) there are no outstanding options, warrants or other rights calling for the issuance of any shares of beneficial interest of the Company or any security convertible into or exchangeable for shares of beneficial interest of the Company and (ii) there is no written commitment, plan or arrangement to issue any shares of beneficial interest of the Company or any security convertible into or exchangeable for shares of beneficial interest of the Company. The Operating Partnership has not issued any security or other equity interest other than units of limited partnership interest (the "Units") issued to the Company and certain other persons that are redeemable at the option of the holder thereof for cash, common Units, or, at the Company's option, for Common Shares on a one-for-one basis. None of the Units in the Operating Partnership has been or will be issued or is owned or held in violation of any preemptive right. The outstanding Units in the Operating Partnership have been issued by the Operating Partnership in compliance with applicable federal and state securities laws. (h) All the outstanding shares of capital stock, limited liability company interests or partnership interests of each Subsidiary, as the case may be, have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all such interests are owned by the Company either directly or through wholly owned subsidiaries (except that the Company, directly or indirectly, owns a 92% interest in Brierbrook Partners, L.L.C., a 51% interest in WMPT Bellaire HP, L.P. and an approximate 43% interest in Lake Mead Medical Investors Limited Partnership) free and clear of any ▇▇▇fected security interest or any other security interests, claims, liens or encumbrances. No such equity interest in any Subsidiary was issued in violation of the preemptive or any similar right of any security holder of such Subsidiary. (i) The Company has the trust power to enter into this Agreement and to consummate the transactions contemplated herein. The Company has the trust power to issue, sell and deliver the Shares as provided herein. This Agreement has been duly authorized, executed and delivered by the Company. (j) The Operating Partnership has the full legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein. This Agreement has been duly authorized, executed and delivered by the Operating Partnership. (k) The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended. (l) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters in the manner contemplated herein and in the Prospectus. (m) Neither the issue and sale of the Shares nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to (i) the Articles of Amendment and Restatement of the Company's Declaration of Trust, as supplemented (the "Declaration of Trust"), or bylaws of the Company, as amended and restated, the Certificate of Limited Partnership or Amended and Restated Agreement of Limited Partnership, as amended (the "Partnership Agreement") of the Operating Partnership or any of the applicable organizational documents of any significant subsidiary as defined in Rule 1-02 of Regulation S-X under the Act, (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 Company or any of its Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Subsidiaries or any of its or their properties, except in the case of clauses (ii) and (iii), to the extent such conflicts, breaches, violations, liens, charges and encumbrances, if any, would not have a Material Adverse Effect. (n) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. (o) The consolidated historical financial statements and schedules of the Company incorporated by reference in the Registration Statement and Prospectus present fairly, in all material respects, the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and consolidated cash flows for the Company for the periods specified, all in conformity with United States generally accepted accounting principles applied on a consistent basis. The financial statement schedules included in the Company's Annual Report on Form 10-K for the year ended December 31, 2005, as amended (the "Annual Report"), have been compiled on a basis consistent with the financial statements included in the Company's Annual Report incorporated by reference in the Registration Statement and the Prospectus~~, the Company~~ . No other financial statements or ~~the Operating Partnership, as the case may be, owns, directly~~ schedules are required by Form S-3 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 otherwise 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~~ or the Prospectus. The pro forma financial statements 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 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~~ include assumptions that provide a reasonable basis for presenting 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 significant effects directly attributable 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 (Windrose Medical Properties Trust)

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 ~~severally~~majority 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(a~~7(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 issuer~~written 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 ~~thereto~~thereto 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 ~~Prospectus~~Prospectus 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; ~~provided~~and any further documents so filed and incorporated by reference in the Registration Statement, ~~however~~the 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 405~~f) 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 NYSE~~trading, 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, ~~management~~financial 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 lease~~own, ~~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, owns~~majority 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 indirectly~~adverse 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 Agreement~~therefor as provided herein, will be duly and validly issued, fully paid and non-~~assessable~~assessable 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 certificates~~material 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 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 ~~below~~in Section 2 hereof) and on ~~which a certificate is required to be delivered pursuant to~~ each Option Closing Date (as defined in Section ~~7(q~~2 hereof), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 Date~~hereof, 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(a~~5(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 hereof~~Applicable 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~~ has become effective ~~upon filing with~~ under the ~~Commission~~Securities Act. 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~~ date, and at each deemed effective date with respect to ~~Agents~~ the Underwriters pursuant to paragraph (f)(2) of Rule ~~430B(f)(2) and at each Settlement Date~~430B, 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 ~~thereto~~thereto 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 ~~Agent~~Representatives. 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~~405 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, the Pricing Disclosure Package and the Prospectus. (fg) The ~~Placement~~ Shares have been authorized for listing on the New York Stock Exchange (the “NYSE”), subject to official notice of ~~issuance~~ issuance, and the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing of each 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 Company’s 6.45% Series D Cumulative Redeemable Preferred Stock, par value $0.01 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-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, 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~~Subsidiary, 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~~ Common Stock conforms and will conform as to legal matters to the ~~Company’s Amended~~ descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and ~~Restated Articles~~ the Prospectus under the caption “Description of ~~Incorporation setting forth the terms of the Series D~~ Common and Preferred ~~Stock (the “Articles Supplementary~~Stock.”~~) 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”).~~ (op) The statements in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package 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~~Underwriting” 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,~~ Act or the Securities ~~Act or any rule or regulation promulgated thereunder). The~~ Act).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~~ 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 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 towill

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~~ 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(q~~20(a)~~, and as of the time of each sale of any Placement Shares pursuant to this Agreement:~~): (a) No 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 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 ~~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 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. (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 thereto~~each 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 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 issuer 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 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,~~ 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(a) 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 lease~~authority, 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 as set forth Schedule 5(b), ~~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~~ outstanding shares of capital ~~stock~~stock 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-~~assessable~~assessable 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 Prospectus~~Schedule 5(a), 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 for~~shares 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 this Agreement 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 to~~part 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 requirements~~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. (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 business, (ii) have not entered into any material transaction, other than transactions in the ordinary course of business, (iii) have not had any material casualty loss or material condemnation or other material adverse event with respect to any of the ~~NYSE~~Properties occur, and (iv) other than payments made by Subsidiaries to their corporate parents in the ordinary course of business, have not declared any dividend or distribution of any kind, paid or made by the Company on any class of its capital stock, or by the Operating Partnership with respect to any class of their capital stock, partnership interests, limited liability company interests or other ownership interests, as applicable. The Company and the Subsidiaries have no material contingent obligations which are not disclosed in the Company’s financial statements which are included in the Registration Statement. (us) ~~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 of the Series D Preferred Stock in accordance~~ Subsidiaries is or with the ~~terms~~ giving of ~~the Articles Supplementary~~notice or lapse of time or both, will ~~be validly issued~~be, ~~fully paid and nonassessable~~in violation of or in default under (i) its declaration of trust, ~~and the issuance~~ certificate of ~~such shares of Common Stock will not be subject to~~formation, charter, by-laws, partnership agreement, limited liability company agreement or other

Appears in 1 contract

Sources: Sales Agreement (Ramco Gershenson 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 Placement 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~~ Closing Time referred to in Section 2(b) hereof, and agrees with the Placement ~~Shares pursuant to this Agreement~~Agent, as follows: (a) A registration statement on Form S-3 (File No. 333-52601), with respect to the Shares, including a prospectus, has been prepared by the Company and the Operating Partnership in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations (the "Securities Act Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, has been filed with the Commission and has been declared effective. The registration statement and prospectus may have been amended or supplemented prior to the date of this Agreement; any such amendment or supplement was prepared and filed, and any such amendment filed after the effective date of such registration statement has been declared effective. No stop order ~~preventing or~~ suspending the ~~use~~ effectiveness of the ~~Prospectus~~ registration statement has been ~~issued~~ issued, and no proceeding for that purpose has been instituted or threatened by the Commission. A prospectus supplement (the "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Shares and additional information concerning the Company and its business has been or will be prepared and, together with the prospectus included in the registration statement, will be filed pursuant to Rule 424(b) of the Securities Act Rules and Regulations on or before the second business day after the date hereof (or such earlier time as may be required by the Securities Act Rules and Regulations). The registration statement, as it may have heretofore been amended, is referred to herein as the "Registration Statement," and the final form of prospectus included in the Registration Statement, as supplemented by the Prospectus Supplement, in the form filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Rules and Regulations, is referred to herein as the "Prospectus." Copies of the Registration Statement and the Prospectus, ~~as of its date~~ any amendments or supplements thereto 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 of each amendment thereto) have been delivered to the Placement Agent and its counsel. Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System ("EDGAR"), and such copy shall be identical in content to an▇ ▇▇▇spectus delivered to the Placement Agent and furnished to the Fund for use in connection with the offering of the Shares to the Fund. (b) Each part of the Registration Statement, when such part became or becomes effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date (as hereinafter defined), conformed or will conform in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations; each part of the Registration Statement, when such part became or becomes effective, or when such part was filed with the Commission, did not or 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 Prospectus and any ~~Settlement~~ amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date, did ~~not, does~~ not ~~and~~ or 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~~except that the foregoing shall not apply to statements in, ~~however~~or omissions from, any such document in reliance upon, and in conformity with, written information concerning the Placement Agent that was furnished to the Company ~~and~~ by the ~~Operating Partnership make no representation and warranty with respect to any~~ Placement Agent ~~Information (as defined~~ specifically for use 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”))preparation thereof. (c) The ~~Registration Statement is an “automatic shelf registration statement” (as defined~~ documents incorporated by reference 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~~ Statement, the ~~Commission~~Prospectus or any amendment or supplement thereto, ~~and no proceeding for that purpose~~ when they became or ~~pursuant to Section 8A of~~ become effective under the Securities Act ~~against~~ or were or are filed with the ~~Company~~ Commission under the Securities Act or ~~related to~~ the ~~offering~~ Securities Exchange Act 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~~1934, as of amended (the ~~date hereof, and any post-effective amendment thereto~~"Exchange Act"), 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~~the case may be, ~~complied and~~ conformed or will ~~comply~~ conform in all material respects with the requirements of the Securities Act, the Securities Act Rules and ~~did not~~ Regulations, the Exchange Act and/or the rules and ~~will not contain any untrue statement~~ regulations of the Commission under the Exchange Act (the "Exchange Act Rules and Regulations"), as applicable. (d) The consolidated financial statements of the Company, together with the related schedules and notes thereto, in the Registration Statement and Prospectus fairly present the financial condition of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations, changes in financial position, stockholders' equity and cash flows for the periods therein specified, in conformity with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise stated therein). The selected financial and statistical data in the Registration Statement and the Prospectus present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a ~~material fact or omit~~ basis consistent with the financial statements presented therein. In addition, to ~~state a material fact~~ the extent applicable, the pro forma financial statements of the Company, and the related notes thereto, in the Registration Statement and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. No other financial statements are 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, set forth or to be ~~incorporated,~~ incorporated by reference in the Registration Statement ~~and~~ or 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),~~ Rules 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 InformationRegulations. (e) ~~The Company was not an “ineligible issuer” (as defined in Rule 405) as~~ To the best of the ~~eligibility determination date for purposes of Rules 164~~ Company's and ~~433 under~~ the Operating Partnership's knowledge, PricewaterhouseCoopers LLP, whose reports are incorporated by reference in the Registration Statement, are and, during the periods covered by their reports, were independent public accountants as required by the Securities Act ~~with respect to the offering of the Placement Shares contemplated by the Registration Statement~~ and the ~~Prospectus~~Securities Act Rules and Regulations. (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 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~~ do business and is in good standing ~~as a foreign corporation~~ in each jurisdiction in which its ownership or lease of property or the conduct of its business ~~or its ownership or leasing of property~~ requires such ~~qualification,~~ 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 earnings, assets, properties, business, results of operations, or condition (financial or otherwise~~), earnings, properties, management, results of operations or prospects~~ ) of the Company, the ~~Operating Partnership~~ Subsidiaries (as hereinafter defined) and the ~~Subsidiaries~~ GP Entities (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”")), and has full corporate power and authority necessary to own or hold its properties, assets and interests in its subsidiaries, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. Except as disclosed in the Prospectus, the Company owns no direct or indirect material equity or other beneficial interest in any corporation, partnership, joint venture or other business entity. (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 full power and authority to own or lease~~New York, ~~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 limited partnership in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (except where the failure to be so qualified would not have a Material Adverse Effect), and has all partnership power and authority necessary to own or hold its properties, assets and interests in its subsidiaries, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. The Company is the sole general partner of the Operating Partnership. The Second Restated and Amended Agreement of Limited Partnership of the Operating Partnership, as amended (the "Operating Partnership Agreement"), is in full force and effect, and the aggregate percentage interests of the Company, Home Properties Trust, a wholly-owned Maryland real estate trust and qualified REIT subsidiary of the Company (the "QRS"), and the other third-party limited partners in the Operating Partnership are approximately 1%, 62% and 37%, respectively. To the extent the Shares are issued in accordance with this Agreement, (i) the percentage interest of the partners in the Operating Partnership will be adjusted accordingly and (ii) the Company will contribute the proceeds from the sale of the Shares to the QRS, which in turn will contribute such proceeds to the Operating Partnership in exchange for a number of units of limited partner interest equal to the number of Shares issued. (h) The QRS has been duly formed and is validly existing as a real estate trust under the laws of the State of Maryland, is duly qualified to do business in each jurisdiction in which its ownership or ~~leasing~~ lease of property or the conduct of its business requires such ~~qualification~~qualification (except where the failure to be so qualified would not have a Material Adverse Effect), ~~except~~ and has all power and authority necessary to own or hold its assets and to conduct the business in which it is engaged. (i) Each of the consolidated subsidiaries of the Company, including the Operating Partnership and the QRS, are listed on Schedule A hereto (collectively, the "Subsidiaries"). Each of the Subsidiaries has been duly incorporated or formed, as the case may be, and is an existing corporation, general or limited partnership, or other legal entity, as the case may be, in good standing (to the extent ~~that~~ such concept is applicable) under the laws of its jurisdiction of incorporation or formation, as the case may be. Each of the Subsidiaries has full power (corporate and other) and authority to own or hold its properties and to conduct the business in which it is engaged, and is duly qualified or registered to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification or registration, except where the failure to be so qualified or ~~be in good standing would not~~registered, ~~individually or~~ considering all such cases in the aggregate, would not have a Material Adverse Effect. (j) The Company and the Subsidiaries hold general partner or other controlling interests in an aggregate of 168 general or limited partnerships or other entities owning apartment communities and/or other real estate assets (the "GP Entities"). Each of the GP Entities has been duly incorporated or formed, as the case may be, and, to the knowledge of the Company, is an existing corporation, general or limited partnership, or other legal entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be. Each of the GP Entities has full power (corporate and other) and authority to own or hold its properties and to conduct the business in which it is engaged, except where the failure to have such power or authority would not have a Material Adverse Effect. (k) ~~Each “significant subsidiary”~~ All of the issued and outstanding capital stock or ownership interests of each Subsidiary have been duly authorized and are validly issued, fully paid and nonassessable and, except as specified on Schedule B hereto, are wholly-owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (~~as defined in Rule 1~~l) As of the date hereof, the Company has authorized capital stock consisting of 80 million shares of Common Stock, 10 million shares of preferred stock, par value $0.01 per share, and 10 million shares of excess stock, par value $0.01 per share, of which 24,968,808 shares of Common Stock (excluding any shares of Common Stock to be issued and sold to The Equity Focus Trusts - REIT Portfolio Series, 2002-~~02(w~~A (the "Equity Focus Shares") on or about the date hereof) and 2,150,000 shares of ~~Regulation S-X)~~ preferred stock are issued and outstanding. All of the issued and outstanding shares of capital stock of the Company ~~other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has~~ have been duly ~~organized~~authorized and are validly issued, ~~is validly existing as a corporation~~fully paid and nonassessable, ~~limited partnership or limited liability company in good standing under~~ conform to 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~~ description thereof in the Registration Statement and the Prospectus and ~~is duly qualified to transact business~~ have been offered and is sold or exchanged by the Company in ~~good standing as a foreign corporation~~compliance with all applicable laws (including, ~~limited partnership or limited liability company~~without limitation, 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 Effectfederal and state securities laws). ~~All~~ None of the ~~issued~~ outstanding shares of capital ~~stock, units of limited partnership interest and units of membership interest of each Subsidiary~~ stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company. The stockholders of the Company and the holders of interests in the Operating Partnership have ~~been duly authorized, are validly issued, fully paid and non-assessable, have been issued in compliance~~ no preemptive rights with ~~applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in~~ respect to the ~~Registration Statement and the Prospectus, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all~~ issuance 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 takenShares. (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 authorizationShares will be, ~~execution and delivery by it of this Agreement and the consummation by it~~ as 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 Closing Date, duly authorized ~~and duly executed~~ by the Company for issuance 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, sale 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 Agreement 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 therefor specified herein, will be validly issued, fully paid and nonassessable. The Shares conform to the description thereof in the Registration Statement and the Prospectus. (n) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no change in the earnings, assets, properties, business, results of operations, or condition (financial or otherwise) of the Company, the Subsidiaries and the GP Entities, taken as a whole, which has had or would reasonably be expected to have a Material Adverse Effect, (B) there has been no casualty, loss, condemnation or other adverse event with respect to any property or interest therein owned, directly or indirectly, by the Company or any Subsidiary which has had or would reasonably be expected to have a Material Adverse Effect, (C) there have been no transactions entered into by the Company or any Subsidiary, other than those in the ordinary course of business, which are material with respect to the Company and the Subsidiaries, taken as a whole, (D) except for regular quarterly distributions on the Common Stock which have been publicly announced through the date of this Agreement, regular quarterly distributions on the Company's preferred stock and regular quarterly distributions on the common and preferred units of the Operating Partnership, 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 any distribution by the Operating Partnership with respect to its common or preferred units, and (E) there has been no material increase in long-term debt or decrease in the ~~issuance~~ capital of ~~such shares~~ the Company, the Subsidiaries or the GP Entities, taken as a whole, other than in the ordinary course of ~~Common Stock will~~ their businesses. (o) Except as set forth in the Prospectus, there is not ~~be subject to~~pending or, to the knowledge of the Compan

Appears in 1 contract

Sources: Placement Agency Agreement (Home Properties of New York 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 Agreement~~Underwriter that: (a) No The Prepricing Prospectus complied when so filed in all material respects with the provisions of the Act. The Commission has not issued any order preventing or suspending the use of the ~~Prospectus has been issued by the Commission, and the~~ Prepricing 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-2 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~~ 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)(2~~424(b) ~~and at each Settlement Date~~under 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; , except that this representation and ~~as of~~ warranty does not apply to statements in or omissions from the ~~date of~~ registration statement or the Prospectus and any supplement or amendment thereto made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or ~~supplement thereto~~on behalf of any Underwriter through you expressly for use therein (such information is listed in Section 12 hereof). (c) The Incorporated Documents heretofore filed, ~~will not contain~~ when they were filed (or, if any amendment with respect to any such document was filed, as amended by such amendment), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; and no such document when it was filed (or, if an amendment with respect to any such document was filed, as amended by such amendment) 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, 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~~ All the ~~Registration Statement~~ outstanding Common Shares have been duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights (except that the Common Shares held by MSGI and ABKB/LaSalle, as defined 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~~ have preemptive rights which 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) be extinguished upon completion of the ~~Securities Act or Rule 134 under~~ Offerings); the ~~Securities Act or (ii) each electronic road show~~ Shares 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 Concurrent Shares have been ~~superseded or modified~~ duly authorized and, when ~~taken together~~ issued and delivered to the Underwriters against payment therefor in accordance with the ~~Prospectus accompanying~~terms hereof, 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~~ purchasers of the ~~circumstances under which they were made~~Concurrent Shares, ~~not misleading~~as the case may be, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; ~~provided, however, that~~ and the capitalization and the capital shares 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) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect conform to the ~~offering of the Placement Shares contemplated by~~ descriptions thereof in the Registration Statement and the Prospectus. (fe) ~~The Placement Shares have been authorized for listing on the NYSE, subject to official notice of issuance~~ All offers and ~~the Company is in material compliance with the rules of the NYSE, including, without limitation, the requirements for continued listing~~ sales 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 Shares of the Company and the Common Units of the Operating ~~Partnership, threatened~~ Partnership prior to the date hereof were at all relevant times duly registered under the Act or ~~contemplated, and the Company has not received any notice~~ exempt from the ~~NYSE regarding~~ registration requirements of the ~~revocation~~ Act pursuant to Section 3(b), 4(2) or 4(6) thereof and were duly registered pursuant to, or were issued pursuant to an available exemption from, the registration requirements of ~~such listing~~ the various state securities 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~~Blue Sky laws. (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~~ is a REIT duly ~~incorporated, is~~ formed and validly existing ~~as a corporation~~ in good standing under the laws of the State of Maryland, ~~has the corporate~~ with full power and authority to ~~own~~ own, lease and ~~lease, as the case may be,~~ operate its ~~property~~ properties and to conduct its business as described in the Registration Statement and 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 so to register or qualify could not reasonably be expected to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and the Subsidiaries (as hereinafter defined) taken as a whole. (g) The Company has no significant subsidiaries (as such term is defined in Regulation S-X of the Commission) other than the Operating Partnership. The Company is the sole general partner of the Operating Partnership, owns __% of the partnership interests in the Operating Partnership and upon completion of the transactions contemplated hereby will own __% of such interests. The Company also owns the Subsidiary Partnerships through ownership of general partner interests and, through the Operating Partnership, limited partner interests. Each of the Operating Partnership and the Subsidiary Partnerships identified as such on Schedule II hereto (the "Subsidiary Partnerships" and, together with the Operating Partnership, the "Subsidiaries") is a limited partnership duly organized and legally existing under the laws of its jurisdiction of organization, with full power and authority to own, lease and operate its ~~property~~ properties and to conduct its business as described in the Registration Statement and the Prospectus 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 so to register or qualify could not 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~~other), ~~earnings~~business, properties, ~~management,~~ net worth or results of operations of the Company and the Subsidiaries taken as a whole. All partnership interests in the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable. All of the interests owned or ~~prospects~~ held by the Company, directly or indirectly, in any Subsidiary are free and clear of any lien, adverse claim, security interest, equity or other encumbrance, except for such as could not reasonably be expected to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and the Subsidiaries, taken as a whole. (h) The agreement of limited partnership of each of the Subsidiaries has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and binding agreement, enforceable in accordance with its respective terms, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws. (i) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened, against the ~~Operating Partnership~~ Company or any Subsidiary, or to which any of them or any of 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 an exhibit to the Registration Statement or any Incorporated Document that are not described or filed as required by the Act or the Exchange Act. (j) Neither the Company nor any Subsidiary is in violation of its declaration of trust, partnership agreement, by-laws or any other organizational document, or of any law, ordinance, administrative or governmental rule or regulation applicable thereto or of any decree of any court or governmental agency or body having jurisdiction over any of them, or 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 Subsidiary is a party or by which any of them or any of their respective properties may be bound, except for such violations or defaults which, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and the ~~Subsidiaries~~ Subsidiaries, taken as a whole. (~~as hereinafter defined~~k) Neither the issuance and sale of the Shares or the Concurrent Shares, the execution, delivery or performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Company or any Subsidiary 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 judgment, injunction, order or decree applicable to the Company or any Subsidiary or any of their respective properties, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject, except for such breaches, defaults, conflicts, violations or creations or impositions which, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and the Subsidiaries, taken as a whole, or (ii) ~~prevent~~ requires any consent, approval, authorization or ~~materially interfere with consummation~~ 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 ~~transactions contemplated hereby (~~Shares under the ~~occurrence~~ Act and the Exchange Act, all of ~~any such effect~~which have been or will be effected in accordance with this Agreement, ~~prevention, interference~~ and compliance with the securities or ~~result described in the foregoing clauses (i~~Blue Sky laws of various jurisdictions) or ~~(ii) being herein referred to as~~ conflicts or will conflict with or constitutes or will constitute a ~~“Material Adverse Effect”)~~breach of, or a default under, the Declaration of Trust, partnership agreement, bylaws, or other organizational documents of the Company or any Subsidiary. (jl) ~~The Operating Partnership has been duly organized~~Ernst & Young LLP, ~~is validly existing as a limited partnership in good standing under~~ who have certified or shall certify the ~~laws of the State of Delaware has the full power and authority to own~~ financial statements included or ~~lease, as the case may be, its property and to operate its property and conduct its business as described~~ incorporated by reference 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~~ any amendment or ~~leasing of property requires such qualification, except~~ supplement to the ~~extent that~~ Registration Statement or the ~~failure to be so qualified or be in good standing would not, individually or in~~ Prospectus) are independent public accountants as required by the ~~aggregate, have a Material Adverse Effect~~Act. (ki) ~~Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X)~~ The financial statements of the Company ~~other than the Operating Partnership (each a “Subsidiary”~~ or its predecessors, together with related schedules and ~~collectively the “Subsidiaries”) has been duly organized~~notes, ~~is validly existing as a corporation, limited partnership~~ included 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 incorporated by reference 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~~ any amendment 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~~ supplement to the ~~extent that~~ Registration Statement or the ~~failure to be so qualified or be~~ Prospectus), present fairly the consolidated financial position, results of operations and changes 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~~ financial position of the Company 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 other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement to the Registration Statement or the Prospectus) are fairly presented and prepared on a basis consistent with such financial statements and the books and records of the Company and the Subsidiaries. (ii) To the best of the Company's knowledge, the financial statements of each other entity included in the Prospectus, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement to the Registration Statement or the Prospectus), present fairly the consolidated financial position, results of operations and changes in financial position of such entity 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 other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement to the Registration Statement or the Prospectus) are fairly presented and prepared on a basis consistent with such financial statements and the books and records of the Company and the Subsidiaries. (iii) The pro forma financial statements included in 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, the Company believes that the assumptions underlying the pro forma adjustments are reasonable, and all pro forma adjustments have been properly applied to the historical amounts in the compilation of such statements. No other financial statements or schedules of the Company are required by the Act to be included or incorporated by reference in the Registration Statement or the Prospectus. (n) Each of the Company and the Operating Partnership has full legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery by the Company and the Operating Partnership of, and the performance by the Company of its obligations under, this Agreement have been duly ~~authorized~~and validly authorized by the Company and the Operating Partnership, ~~are validly issued~~and this Agreement has been duly executed and delivered by the Company and the Operating Partnership and constitutes the valid and legally binding agreement of the Company and the Operating Partnership, ~~fully paid~~ enforceable against them in accordance with its terms, except as rights to indemnity and ~~non-assessable, have been issued in compliance with applicable~~ contribution hereunder may be limited by federal or state securities ~~laws and were not issued in violation of any preemptive or similar rights.~~ laws. (o) Except as disclosed in the Registration Statement and the ~~Prospectus~~Prospectus (or any amendment or supplement thereto), 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 subsequent to the ~~Company’s Amended and Restated Articles~~ respective dates as 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 which 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 information is ~~as set forth~~ given in the Registration Statement and the Prospectus (~~except for subsequent issuances~~or any amendment or supplement thereto), ~~if any~~neither the Company nor any Subsidiary has incurred any liability or obligation, ~~pursuant to (i) this Agreement~~direct or contingent, ~~(ii) pursuant to reservations~~or entered into any transaction, ~~agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to~~ not in the ~~Registration Statement~~ ordinary course of business, that is material to the Company and the ~~Prospectus~~Subsidiaries taken as a whole, ~~(iii) pursuant to~~ and there has not been any change in the ~~exercise, redemption~~capital stock, or ~~exchange of convertible or exchangeable securities, options or warrants referred to~~ material increase in the ~~Registration Statement and the Prospectus, including OP Units~~ short-term debt 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 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 the ~~requirements~~ Subsidiaries taken as a whole other than as a result of borrowings made by the Company under its credit facility in the ordinary course of business, or any material adverse change, or any development involving or which may reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, net worth or results of operations of the ~~NYSE~~Company and the Subsidiaries taken as a whole. (up) (i) The ~~shares of Common Stock initially issuable upon conversion~~ Company has good and marketable fee simple title to all of the ~~Series D Preferred Stock have been duly authorized and~~Properties listed under the caption "Apartment Communities Owned by the Operating Partnership" on Schedule II hereto, ~~when issued upon conversion of~~ has good title to its interests in the ~~Series D Preferred Stock in accordance with the terms of the Articles Supplementary, will be validly issued, fully paid and nonassessable~~Subsidiary Partnerships, and has good title to the ~~issuance~~ other assets reflected in the financial statements described above (or as described in or incorporated by reference into the Registration Statement or Prospectus), subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those reflected in such ~~shares of Common Stock will~~ financial statements (or as described in or incorporated by reference into the Registration Statement or Prospectus) or which are not ~~be subject to~~material in amount; (ii) the Company occupies its leased properties under valid and binding leases conforming, to the extent such leases are described therein, to the description thereof set forth in or incorporated by reference into the Registration Statement or Pro

Appears in 1 contract

Sources: Underwriting Agreement (Grove Property Trust)

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(q~~20(a)~~, 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 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 ~~Prospectus~~applicable Settlement Date an “ineligible issuer” (as defined in Rule 405). The Company has been since the time of initial filing of the Registration Statement and is 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 the Agent 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 Date~~at each deemed effective date with respect to the Agent 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. (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,~~ 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 CF&Co furnished to the Company ~~and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined~~ in ~~Section 9(a) hereof)~~writing by CF&Co expressly for inclusion therein. (Ag) At The documents incorporated by reference in the ~~original effectiveness~~ Prospectus as of the ~~Registration Statement, (B) at~~ Applicable Time and the ~~time of~~ information in 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) Prospectus 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,~~ Prospectus 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~~ did not, and will ~~comply in all material respects with the Securities Act~~not, ~~and did not and will not~~ at such times, as applicable, 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~~ therein, in the light of the circumstances under which they were made, not misleading~~; and~~ . (h) Each Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), as of the ~~date of the Prospectus and any amendment or supplement thereto~~Applicable Time, ~~will~~ did 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 Free Writing Prospectus in reliance upon and in conformity with written information relating to CF&Co furnished to the Company ~~and the Operating Partnership make no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated,~~ in writing by ~~reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied~~ CF&Co for inclusion therein. (i) Each 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 an 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~~ 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”)Securities Act. (j) ~~The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws~~ 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 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” 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 ~~Effect~~Change”); 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. (k) 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 ~~rights~~right. Except ~~as disclosed in~~ for the ~~Registration Statement and~~ issuance of OP Units by 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. (l) The Shares to be issued and sold by the Company through the Agents 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 ~~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~~ . (m) 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 “~~Charter~~OP Units”~~), and Bylaws, as amended,~~ ) equal to the number of ~~the Company and the requirements of the NYSE~~Placement Shares. (un) 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 Supplementary~~payment 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. (o) 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. (p) Sufficient Common Shares have been reserved for issuance of ~~such shares~~ Equity Incentive Awards under the Company’s Equity Incentive Plan. (q) 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. (r) 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. (s) 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. (t) 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 to~~reasonably expected to have a Material Adverse Change. (u) 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 Agents and as would not reasonably be expected to have a Material Adverse Change. (v) 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 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. (w) Neither the Company nor any of its Subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business 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, and since such date, there has not been any change in the capital stock or long-term debt of the Company, any of its Subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, shareholders’ equity, properties, management, business or prospects of the Company and its Subsidiaries taken as a whole, except as disclosed in the Prospectus or as could not, in the aggregate, reasonably be expected to have a Material Adverse Change. (x) Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information is given in the Prospectus, the Company has not (i) incurred any liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any divi

Appears in 1 contract

Sources: Sales Agreement (Chatham Lodging Trust)

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(q~~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 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 Statement~~issue 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 meaning~~Closing Time and each Option Closing Time, ~~for this clause only~~each 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 (i~~f) 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 thereby~~Final 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 filed~~Securities 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 Authority~~Representatives, ~~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 incorporated~~Preliminary 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 ~~qualification~~documents 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(w~~l) ~~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 organized~~similar rights to have any equity or debt securities, ~~is validly existing as a corporation~~including 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 ~~indirectly~~similar 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 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 outstanding~~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 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 ~~herewith~~with 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 requirements~~entitled 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 Supplementary~~Notes 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 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 Agreement~~Representatives 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 ~~Prospectus~~Rules 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)(2~~424(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)(a~~Rule 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 Agent~~Act. 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,~~ 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(q~~20(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 ~~Prospectus~~time 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 Date~~at 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 Statement~~Each “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 amendment~~without 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 hereof~~Applicable 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 “Subsidiaries~~Material 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 stock~~any 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 (~~collectively~~i) 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 ~~subsidiaries~~subsidiary” ~~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 ~~accurate~~fully 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 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 ~~outstanding~~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 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 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 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 herewith~~and 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 to~~otherwise 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 ~~NYSE~~Securities 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 and~~Prospectus, ~~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 nonassessable~~related 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 to~~Regulation S-X under the Securities Act. (v) PricewaterhouseCoopers LLP (the “Ac

Appears in 1 contract

Sources: Sales Agreement (Gladstone Commercial Corp)

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(q~~2 hereof), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 of any amendment~~ Registration Statement or ~~supplement and on any Settlement Date~~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~~not contain and, ~~does not and~~ as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (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 as of [•], 2010, 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~~(iv) the Time of Sale Prospectus does not, ~~however~~and at the Time of Sale, on the Closing Date and, if applicable, each Option Closing Date, the ~~Company and~~ Time of Sale Prospectus, as then amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the ~~Operating Partnership make no representation and warranty~~ statements therein, in the light of the circumstances under which they were made, not misleading; (v) each Permitted Free Writing Prospectus that was not preceded or modified does not conflict with ~~respect to any Agent Information (as defined~~ the information contained in ~~Section 9(a) hereof). (A) At the original effectiveness of~~ the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus that was not superseded or modified and was accompanied or preceded by the then-most recent Preliminary Prospectus, to the extent required by Rule 433 under the Securities Act; (Bvi) at each road show, when considered together with the ~~time~~ Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the ~~most recent amendment thereto for~~ circumstances under which they were made, not misleading; and (vii) the ~~purposes of complying with Section 10(a)(3)~~ Prospectus (including any Prospectus wrapper), as of the ~~Securities Act (whether such amendment was by post-effective amendment, incorporated report~~ date it is filed with the Commission 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~~424(b) 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 Closing Date and at each ~~deemed effective date with respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement~~ Option Closing Date, ~~complied and~~ if any, will comply in all material respects with the Securities Act (including, without limitation, the requirements of Section 10(a) of 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~~ representations and ~~the Operating Partnership make no representation and warranty with respect~~ warranties set forth in this Section 1(c) do not apply to ~~any Agent Information. The documents incorporated,~~ statements or ~~to be incorporated, by reference~~ 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 ~~Prospectus~~Registration Statement relating to the offering of the Shares contemplated hereby, ~~at the time~~ as initially filed with the Commission, ~~complied~~ includes a prospectus that, other than by reason of Rule 433 or ~~will comply~~Rule 431 under the Securities Act, ~~in all respects to~~ satisfies the requirements of Section 10 of the ~~Exchange~~ Securities 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 Securities Act, from using, in connection with the offer and ~~representatives~~sale of the Shares, ~~other than~~ free writing prospectuses pursuant to Rule 164 and Rule 433 under 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~~ Securities Act; each Permitted Free Writing Prospectus ~~(other than as referred~~ that the Company has filed, or is required to ~~in clause (i) below) other than (i) any document not constituting a prospectus~~ file, pursuant to ~~Section 2(a)(10)(a~~Rule 433(d) ~~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~~ that was prepared by or behalf of or used or referred to by the ~~Agent. Each such Issuer Free Writing Prospectus complied and~~ Company complies or will comply in all material respects with the requirements of the Securities ~~Act (~~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; and, 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 knowledge 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~~ Partnership, no ~~representation and warranty~~ free writing prospectus prepared by or on behalf of or used by any Underwriter contains any “issuer information” that was not previously filed with ~~respect to any Agent Information~~the Commission within the meaning of Rule 433(h)(2) under the Securities Act. (e) The Company was not an “ineligible issuer” (as defined in Rule ~~405~~405 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 Prospectus~~Statement. (f) The ~~Placement~~ Shares ~~have been authorized~~ are approved for listing on the New York Stock Exchange (“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 issuance. To the knowledge of the Company and the Operating Partnership, ~~threatened or contemplated~~except as disclosed in the Registration Statement, the Time of Sale Prospectus 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 PartnershipProspectus, 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,~~ 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~~Registration Statement was initially filed with the Commission, except as has been disclosed to the Representatives in ~~writing~~writing 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~~ 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~~ 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~~ Partnership, the Affiliated Subsidiaries and the ~~Subsidiaries (as hereinafter defined)~~Z▇▇▇▇▇▇ Subsidiaries, 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~~material 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~~ 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~~ 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 Effect~~material adverse effect. (ki) Each ~~“significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X)~~ Affiliated Subsidiary and, to the knowledge of the Company ~~other than~~ and the Operating ~~Partnership (~~Partnership, each ~~a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized,~~ Z▇▇▇▇▇▇ Subsidiary is validly existing as a corporation, limited partnership or limited liability ~~company~~ company, as the case may be, in good standing under the laws of the jurisdiction of its ~~organization~~organization set forth opposite its name on Schedule III annexed hereto; each Affiliated Subsidiary and, to the knowledge of the Company and the Operating Partnership, each Z▇▇▇▇▇▇ Subsidiary 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 Effect. All~~ material adverse effect; 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 Affiliated Subsidiary and, to the knowledge of the Company and the Operating Partnership, each Z▇▇▇▇▇▇ Subsidiary 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 applicable securities laws and were not issued in violation of any preemptive or similar rights, except as would not have a material adverse effect; except as described in the Time of Sale Prospectus and the Prospectus, upon consummation of the Formation Transactions, the Company or the Operating Partnership, as the case may be, will own the shares of capital stock, units of limited partnership interest or percentage of membership interests of the Affiliated Subsidiaries and the Z▇▇▇▇▇▇ Subsidiaries described in the Time of Sale Prospectus and the Prospectus as being owned by the Company or the Operating Partnership, 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”), except as would not have a material adverse effect. Upon the completion of the Formation Transactions, the Operating Partnership, except for any taxable REIT subsidiary that the Operating Partnership may determine to form or in connection with any of the acquisition or development opportunities described in the Time of Sale Prospectus and the Prospectus, in each case after the initial Closing Date, the Affiliated Subsidiaries and the Z▇▇▇▇▇▇ Subsidiaries will comprise all of the subsidiaries of the Company. (j) 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 the consummation by it of the transactions contemplated hereby has been duly and validly taken. (k) 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 has been duly and validly taken. (l) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. This Agreement is a valid and binding agreement of each of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or other similar laws relating to creditors’ rights and general principles of equity and except as rights to indemnification and contribution hereunder may be limited by applicable law or policies underlying such law. (m) The authorized and outstanding capitalization of the Company is as set forth in the Time of Sale Prospectus and the Prospectus under the caption “Capitalization” and will be as set forth in the Prospectus subject, in each case, to the closing of the transactions contemplated by the Formation Transactions as described in the Time of Sale Prospectus and the Prospectus, as the case may be, and the grant of equity awards under existing equity incentive plans described in the Time of Sale Prospectus and the Prospectus. The authorized capital stock of the Company conforms and will conform as to legal matters to the description thereof contained in the Time of Sale Prospectus and the Prospectus. (n) The shares of Common Stock issued and outstanding prior to the issuance of the Shares to be sold by the Company 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~~ 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. (to) The ~~Placement Shares~~ OP Units issued and outstanding prior to ~~be sold by~~ the ~~Company~~ completion of the Formation Transactions have been duly ~~authorized and~~authorized, ~~when issued and delivered against payment therefore in accordance with the terms of this Agreement, will be~~ are validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and ~~the issuance of such Placement Shares will~~ were not ~~be subject to or~~ issued in violation of any preemptive or similar rights. ~~Upon payment~~ Except as described in the Time of Sale Prospectus and the ~~purchase price and issuance and delivery of the Placement Shares~~ Prospectus, no options, warrants or other rights to ~~be issued and sold by the Company in accordance herewith~~purchase, ~~the purchasers thereof will receive good, valid and marketable title~~ agreements or other obligations 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~~issue, or ~~incorporated by reference in~~rights 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 NYSEOperating Partnership are outstanding. (up) The ~~shares of Common Stock initially issuable upon conversion of the Series D Preferred Stock~~ Shares 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 tob

Appears in 1 contract

Sources: Underwriting Agreement (Richmond Honan Medical 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~~ 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 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~~ will be so prepared and will ~~not contain any untrue statement of a material fact or omit~~ be filed pursuant 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)(3Rule 424(b) of the Securities Act on or before the second business day following the date of this Agreement. Copies of the Registration Statement and the Prospectus, any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement (~~whether such~~ including one fully executed copy of the Registration Statement and each amendment ~~was by post-effective amendment, incorporated report filed pursuant~~ 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 ~~form of prospectus)~~the Exchange Act Regulations with the Commission on the ▇▇▇▇▇ system. The documents incorporated by reference in the Registration Statement, ~~(C) at~~ the ~~time~~ Prospectus, the ~~Company~~ Pricing Prospectus or any ~~person acting on its behalf (within the meaning~~amendment or supplement thereto, ~~for this clause only, of Rule 163(c)~~ when they became or become effective under the Securities ~~Act) made any offer relating to~~ Act or were or are filed with the ~~Securities in reliance on the exemption of Rule 163~~ Commission under the Securities Act or the Exchange Act, ~~and (D)~~ as the case may be, conformed or will conform in all material respects with the requirements of the ~~date hereof~~Securities Act and the Exchange Act, as applicable. (c) The Company has complied with the requirements of Rule 433 under the Securities Act with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to any such Issuer Free Writing Prospectus. The Company has not (i) distributed any offering material in connection with the offering other than the Prospectus, the Pricing Prospectus and any Issuer Free Writing Prospectus set forth on Exhibit E hereto, or (ii) filed, referred to, approved, used or authorized the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the offering or the Shares, except for any Issuer Free Writing Prospectus set forth in Exhibit E hereto and any electronic road show previously approved by the Representatives. (d) The Company was ~~and is a~~ not an “~~well-known seasoned~~ ineligible issuer” (as defined in Rule 405 under the Securities ~~Act (“Rule 405”)). (c~~Act) ~~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,~~ eligibility determination date for purposes of Rules 164 and ~~no proceeding for that purpose or pursuant to Section 8A of~~ 433 under the Securities Act ~~against the Company or related~~ with respect to the offering of the ~~Placement~~ Shares contemplated hereby. (e) The Company has an authorized capitalization as set forth in the Pricing 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 Pricing Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the 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 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. (f) 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, 2005) has been ~~initiated or~~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 ~~knowledge~~ Registration Statement and the Pricing 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. (g) Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing in each jurisdiction in which the 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 reasonably be expected to have a material adverse effect on the assets, business, 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 Pricing 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 Pricing 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. (h) 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. (i) 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 Pricing 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. (j) 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. (k) 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. (l) The execution, delivery and performance of this Agreement by the Company and the Operating Partnership and 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 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 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 (ii) for such breaches or defaults that could not have a Material Adverse Effect, or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or the Subsidiaries, except as could not have a Material Adverse Effect. (m) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. (n) 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) such as have been obtained, or will have been obtained at or prior to the Closing Time or the relevant Date of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the quotation of the Shares on the NYSE and (C) any necessary qualification under the securities or “blue sky” laws of the various jurisdictions in which the Shares are being offered by the Underwriters. (o) 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 Pricing 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 Subsidiary, which could have a Material Adverse Effect. (p) 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, any Rule 462(b) Registration Statement or any Issuer Free Writing Prospectus 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 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. (q) The Registration ~~Statement~~Statement complies, 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 hereof~~case may be, comply, and ~~any post-effective amendment thereto~~the Pricing Prospectus, as at the time 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~~filing thereof, ~~complied and will comply~~ complied, in all material respects with the requirements of the Securities ~~Act~~Act 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 ~~thereto~~thereto 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 representation ~~and~~ or 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 on behalf of the Underwriters through the Representatives to the Company expressly for use therein (that information being limited to that described in the penultimate sentence of Section 9(b) hereof). (r) For purposes of this Agreement, ~~or delivered prior to delivery of~~the “Applicable Time” is 9:15 a.m., ~~such Issuer Free Writing Prospectus~~New York City time, on the date of this Agreement. The Pricing Disclosure Package, as of the Applicable Time, did ~~not~~ not, and as of the Closing Time and on each Date of Delivery, if any, 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, 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 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 complies in all material respects with ~~all~~ the applicable ~~legal requirements~~provisions of the Securities Act and the Securities Act Regulations, and does not or will not include information that conflicts with the information contained in the Registration Statement, the ~~requirements~~ Prospectus or the Pricing Prospectus; and any Issuer Free Writing Prospectus not listed on Exhibit E hereto, as supplemented by and taken together with the Pricing Disclosure Package as of the ~~Articles~~ Applicable Time, did not contain an untrue statement of ~~Amendment~~ a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No representation and ~~Restatement, as amended~~ warranty is made in this Section 3(r) with respect to any information contained in or ~~supplemented~~ omitted from the Pricing Disclosure Package or any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the ~~date hereof~~ Representatives specifically for use therein (that information being limited to that described in the ~~“Charter”~~penultimate sentence of Section 9(b) hereof); and provided, further, that the foregoing representations and ~~Bylaws, as amended, of~~ warranties are given on 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 basis that any statement contained 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~~a document incorporated or deemed

Appears in 1 contract

Sources: Underwriting Agreement (Highland Hospitality Corp)

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 statement~~Representatives 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 Statement~~Securities, as of amended at the ~~date hereof~~time 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 (i~~Commission 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(w~~hereinafter 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

Sources: Underwriting Agreement (Prime Group Realty Trust)

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(q~~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 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 Statement~~issue 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 meaning~~Closing Time and each Option Closing Time, ~~for this clause only~~each 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 thereby~~Final 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 filed~~Securities 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 Authority~~Representatives, ~~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 incorporated~~Preliminary 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 ~~qualification~~documents 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(w~~l) ~~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 organized~~similar rights to have any equity or debt securities, ~~is validly existing as a corporation~~including 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 ~~indirectly~~similar 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 outstanding~~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 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 ~~herewith~~with 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 Shares~~or 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 requirements~~corporate 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 ~~NYSE~~Notes 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 Supplementary~~Exchange Act, ~~will be validly issued, fully paid and nonassessable, and the issuance of such shares of Common Stock will not be subject to~~or (ii

Appears in 1 contract

Sources: Underwriting Agreement (Ready Capital Corp)

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 Agreement~~Settlement 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(c~~164(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 Act~~date hereof and on each Representation Date, ~~and (D)~~ as of ~~the date hereof~~each 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 statement~~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 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 thereto~~each 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 Act~~Manager 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 (ii~~Act) ~~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 filed~~with 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 ~~qualification~~qualification 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), ~~earnings~~business, properties, ~~management~~assets, 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 lease~~own, 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 ~~qualification~~qualification 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 ~~organization~~incorporation or formation, and each such subsidiary has the ~~full~~ requisite corporate or similar power and authority to ~~own or lease~~own, as lease and operate its properties (collectively, with the ~~case may be~~Company 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 ~~qualification~~qualification 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 ~~indirectly~~indirectly 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 taken~~securityholder 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 ~~purchase~~subscribe 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 for~~shares 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 outstanding~~Operating 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 requirements~~the 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 NYSE~~Operating 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 and~~Company 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 to~~action, 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 Agreement~~case 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 ~~Commission~~Securities 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 Partnership~~Company, ~~threatened~~ are contemplated by the Commission~~. The Registration Statement, as of the date hereof~~, and any ~~post-effective amendment thereto~~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 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 Date~~of 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, ~~however~~as 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 ~~Prospectus~~Prospectus 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 thereby~~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 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 ~~purchase~~subscribe 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 Shares~~the Shares being sold by the Company, free and clear of ~~all Liens~~any 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 to~~limited 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 Partnership~~Transaction 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 Agreement~~Closing Date (if any), as follows: (a) ~~No order preventing or suspending~~ On the ~~use of~~ Effective Date, the ~~Prospectus has been issued by the Commission~~Registration 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 statement~~Commission 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 thereto~~Offering (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 made~~time 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)(a~~Rule 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 qualification~~electronically 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, 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) hereof~~21(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 hereof~~Securities 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 thereto~~when 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 Date~~the Prospectus will, ~~complied and will~~ comply in all material respects with the applicable requirements of the Securities ~~Act~~Act 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 (ii~~Company 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 Prospectus~~Statement, 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 Information~~information 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 Prospectus~~Exchange 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 company~~partnership, 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, ~~liens~~claims, 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 outstanding~~Company. (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 Shares~~Company, 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 amended~~agreements, 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 NYSE~~Operating 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 Supplementary~~Company 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 to~~a

Appears in 1 contract

Sources: Sales Agreement (Sun 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 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(q~~7(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 Partnership~~Company, 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 ~~Agent~~Agents. 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 ~~NYSE~~Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the ~~NYSE~~Nasdaq, 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~~Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the ~~Company and the Operating Partnership~~Company, 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 ~~NYSE~~Nasdaq. (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 herewith~~a 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 in~~constitute 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 ~~Restatement~~Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and ~~Bylaws~~Restated By-laws of the Company, as ~~amended~~amended 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 ~~NYSE~~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: Sales Agreement (Indus Realty Trust, 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 hereof~~Additional 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 Agreement~~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 (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 Partnership~~Company, 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 Common Stock, on the date ~~hereof~~hereof 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 thereto~~Additional 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 incorporated~~Underwriter 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 Act~~Section 15 hereof. (df) ~~Other than the Registration Statement and the Prospectus~~The 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 ~~prepare~~at 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 Information~~Underwriter 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 issuer~~road 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 Prospectus~~circumstances 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 writing~~Securities Act. (i) The capitalization of the Company ~~has~~ as of December 31, 2019 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 ~~incorporated~~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). (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 ~~Maryland~~its 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 ~~assets~~condition, business, ~~condition (financial or otherwise), earnings,~~ properties, ~~management~~assets, net worth, results of operations or prospects of the Company, the Operating Partnership and their subsidiaries (after giving effect to the ~~Subsidiaries (as hereinafter defined~~Formation Transaction), 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~~ the Management Agreement (as defined below) (each a “Transaction Document”) and ~~all corporate action required to be taken for~~ collectively, 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~~“Transaction Documents”) ~~The Operating Partnership has the partnership power and authority to execute and deliver this Agreement~~ 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 the Management Agreement and the consummation by it of the transactions contemplated hereby ~~have~~ and thereby 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 except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, the issuance of such ~~shares of Common Stock~~ Shares will not be subject toto 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) 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”) to be issued in the Formation Transaction have been duly authorized for issuance by the Subsidiary Partnerships and their general partner and validly issued. The terms of the Subsidiary 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 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 the Subsidiary Partnerships. Any prior offers and sales of the Subsidiary 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 Subsidiary OP Units were issued in violation of the preemptive or other similar rights of any holder of the Subsidiary Partnerships. (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 (after giving effect to the Formation Transaction), 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 (after giving effect to the Formation Transaction) 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 (after giving effect to the Formation Transaction), except for such defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and there does not exist any state of facts that constitutes an event of default on the part of the Company, the Operating Partnership or any of their subsidiaries as defined in such documents or that, with notice or lapse of time or both, would constitute such an event of default, except for such events of default which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (q) The Company’s execution and delivery of this Agreement and the performance by the Company of its obligations under this Agreement have been duly and validly authorized by the Company and this Agreement has been duly executed and delivered by the Company

Appears in 1 contract

Sources: Underwriting Agreement (NexPoint Real Estate Finance, 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 ~~hereof~~of 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(q~~if any), and as agree with each of the ~~time of each sale of any Placement Shares pursuant to this Agreement~~Underwriters, 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 Date~~thereto, ~~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 hereof~~applicable filing date, at the Closing Time and ~~any post-effective amendment thereto~~on 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 Date~~if 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 incorporated~~Disclosure Package as of [·] [a.m.]/[p.m.], ~~or to be incorporated~~New 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; ~~provided~~as of its issue date or date of first use and at all subsequent times through the Initial Sale Time, ~~however~~each 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 Information~~the 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 ~~Prospectus~~Securities Act Regulations. (f) ~~The Placement Shares have been authorized~~ Except for ~~listing on~~ the ~~NYSE~~Issuer 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 ~~NYSE~~Shares, 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 “~~FINRA~~EGC”), 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 ~~assets~~Waters Communication (as defined below) other than through, ~~business, condition (financial~~ or ~~otherwise), earnings, properties, management, results of operations or prospects of the Company~~as 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 effect~~Representatives, 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 “~~Subsidiary~~written 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 taken~~circumstances 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

Sources: Underwriting Agreement (NETSTREIT 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 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(q~~20(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 ~~Prospectus~~time 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 Date~~at 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 Statement~~Each “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 amendment~~without 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 hereof~~Applicable 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 “Subsidiaries~~Material 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 stock~~any 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 (~~collectively~~i) 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 ~~subsidiaries~~subsidiary” ~~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 ~~accurate~~fully 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 ~~outstanding~~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 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 herewith~~and 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 to~~otherwise 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 ~~NYSE~~Securities 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 and~~Prospectus, ~~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 nonassessable~~related 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 to~~Regulation S-X under the Securities

Appears in 1 contract

Sources: Sales Agreement (Gladstone Commercial Corp)

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 ~~hereof~~hereof 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 Commission~~Act, 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 Date~~Shares, 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 hereof~~Time 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)(2~~401(g)(2) ~~and at each Settlement Date~~under 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 thereto~~Shares 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 comply~~Rule 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 ~~405~~405 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 Prospectus~~Statement. (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 Partnership~~related 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(w~~dates 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 issuances~~in 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 any~~executed 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 Agreement~~will be, at the time of execution and delivery thereof, duly authorized, executed and delivered by the Company and, (ii) ~~pursuant to reservations~~assuming the due authorization, ~~agreements~~execution 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.” (q~~equity 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 Agreement~~therefor as provided herein, will be duly and validly ~~issued,~~ issued and fully paid and non-~~assessable~~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; 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~~the second amended and restated bylaws of the Company, as ~~amended~~amended (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 Supplementary~~Company, ~~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 nonassessable~~made 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 to~~lease or sublease and (i

Appears in 1 contract

Sources: Equity Distribution Agreement (QualityTech, LP)

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 Date~~this 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 made~~Applicable Time, ~~not misleading; provided~~as 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 ~~Statement~~Statement 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 Partnership~~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. The Registration Statement was initially filed with the Commission on September 1, 2021. (c) Registration Statement, as Prospectus and Disclosure at the 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 Date~~the 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 ~~thereto~~thereto 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, ~~however~~complied 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 Information~~of 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 issuer~~issuer 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 Prospectus~~parties 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 (ii~~as defined below) ~~the Company or any of the Company’s officers, directors~~other 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 effect~~Representatives, 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 “~~Subsidiary~~written 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 taken~~circumstances 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

Sources: Underwriting Agreement (NETSTREIT Corp.)

Representations and Warranties of the Company and the Operating Partnership. The Company and Aviv Healthcare Properties Operating Partnership I, L.P., a Delaware limited partnership (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 Date~~Preliminary Prospectus, ~~did not~~as 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)(2~~172 under the Act or any similar rule) ~~and at each Settlement Date~~in 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 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 ~~comply~~satisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), ~~in all respects to~~ (c) and (d) of Rule 164); each of the Preliminary Prospectuses dated [insert dates of red herrings actually distributed] 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 ~~representatives~~sale of the Shares, ~~other than~~ “free writing prospectuses” (as defined in Rule 405 under the ~~Agents in their capacity as such~~Act) 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 ~~405~~405 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 capitalization as set forth in the section of the Registration Statement, the Preliminary Prospectuses and the Prospectus entitled “Description of Capital 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 section of the Registration Statement, the Preliminary Prospectuses and the Prospectus entitled “Description of Capital 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 or upon redemption of units of the Operating Partnership, in each case that are 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. ); immediately following the Recapitalization Transactions (fas defined below) ~~The Placement Shares~~ and prior to the consummation of the transactions contemplated by this Agreement, all of the issued and outstanding shares of capital stock, including the Common Stock, of the Company will have been duly authorized and validly issued and fully paid and non-assessable, will have been issued in compliance with all applicable securities laws and will not have been issued in violation of any preemptive right, resale right, right of first refusal or similar right; the Shares are duly listed, and admitted and authorized for ~~listing on the NYSE~~trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE; (e) prior to the consummation of this offering, the recapitalization transactions described in the section of the Registration Statement, the Preliminary Prospectuses and the Prospectus entitled “Our Structure—Recapitalization Transactions” (the “Recapitalization Transactions”) shall have been consummated as described therein and all outstanding units of the Operating Partnership shall have been duly authorized and validly issued; (f) neither the Company nor any of the Subsidiaries (as defined below) is in ~~material compliance~~ breach or violation of or in default under (nor has any event occurred which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or give the ~~rules~~ holder of any indebtedness (or a person acting on such holder’s behalf) the ~~NYSE~~right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (A) its respective charter, bylaws or other organizational documents, or (B) 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 it is a party or by which it or any of its properties may be bound or affected, or (C) any federal, state or local law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the ~~requirements for continued listing~~ rules and regulations of the ~~Common Stock~~NYSE), or (E) any decree, judgment or order applicable to it or any real property owned or leased by the ~~Company's 9.25% Series A Cumulative Redeemable Preferred Stock~~Company or any Subsidiary (each, ~~$0.01 par value per share (~~a “Property” and collectively the “~~Series A Preferred Stock~~Properties”), except, in the ~~Company's 7.875% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share~~ case of clauses (~~the “Series B Preferred Stock”~~B), ~~the Company's 7.125% Series C Cumulative Redeemable Preferred stock, par value $0.01 per share~~ (~~the “Series C Preferred Stock”~~C), (D) and (E) above, where such breach, violation or default would not, individually or in the ~~Series D Preferred Stock on the NYSE~~aggregate, 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.have a Material Adverse Effect (as defined below); (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 and~~ Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares to be sold by it pursuant hereto as contemplated herein; (h) the Company is duly qualified to ~~transact~~ do business as a foreign entity 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, (i) have a material adverse effect on the ~~assets,~~ business~~, condition (financial or otherwise), earnings~~, properties, ~~management~~financial 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 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”).; (ji) ~~The~~ 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 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~~ under the laws of all other jurisdictions where 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.; (kj) ~~Each “significant subsidiary”~~ the Company has or, immediately following the Recapitalization Transactions and prior to the consummation of the transactions contemplated by this Agreement, will have no subsidiaries (as defined ~~in Rule 1-02(w~~under the Act) ~~of Regulation S-X) of the Company~~ other than ~~the Operating Partnership~~ those listed in Schedule D-1 annexed hereto (~~each a “Subsidiary” and collectively~~ collectively, the “Subsidiaries”) ); except with respect to the Operating Partnership, the Company owns or, immediately following the Recapitalization Transactions, will own, directly or indirectly, all of the issued and outstanding capital stock of each of the Subsidiaries; other than the capital stock of the Subsidiaries, the Company does not and, immediately following the Recapitalization Transactions, will 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 the Company and each Subsidiary and all amendments thereto have been delivered to you 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; each Subsidiary has been duly ~~organized,~~ incorporated or organized and is validly existing as a corporation, limited ~~partnership~~ liability company or limited ~~liability company~~ partnership in good standing under the laws of the jurisdiction of its incorporation or organization, ~~has the~~ with full corporate, limited liability company or partnership power and authority to own ~~or lease, as the case may be,~~ and lease 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 ~~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 equity interests of each ~~Subsidiary~~ of the ~~Company or the Operating Partnership~~ Subsidiaries have been duly ~~authorized, are~~ authorized and validly issued, are, if applicable, 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 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 toa

Appears in 1 contract

Sources: Underwriting Agreement (Aviv 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~~ Purchaser 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 Agreement~~that: (a) ~~No order preventing~~ Neither the Company nor any of its affiliates, as such term is defined in Rule 501(b) under the Securities Act (each, an "Affiliate"), has, directly or ~~suspending~~ indirectly, solicited any offer to buy, sold or offered to sell or otherwise negotiated in respect of, or will solicit any offer to buy or offer to sell or otherwise negotiate in respect of, in the ~~use~~ United States or to any United States citizen or resident, any security which is or would be integrated with the sale of the ~~Prospectus has been issued by~~ Shares in a manner that would require the ~~Commission~~Shares to be registered under the Securities Act. 5 (b) The Offering Memorandum does not, and at the ~~Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did~~ Closing Date will not, ~~does 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~~provided that this representation, ~~however,~~ warranty and agreement shall not apply to statements in or omissions from the Offering Memorandum made in reliance upon and in conformity with information furnished to the Company ~~and~~ in writing by the ~~Operating Partnership make no representation and warranty with respect to any Agent Information (as defined~~ Purchaser expressly for use 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”))Offering Memorandum. (c) The ~~Registration Statement is~~ Offering Memorandum shall include as an ~~“automatic shelf registration statement” (as defined in Rule 405) and~~ exhibit thereto the ~~Securities have been and remain eligible for registration by~~ most recent Annual Report of the Company on ~~such automatic shelf registration statement. The Registration Statement became effective upon filing~~ Form 10-K filed with the ~~Commission. No order suspending the effectiveness of the Registration Statement has been issued by the Commission,~~ 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~~ each Quarterly Report of the Company on Form 10-Q and each Current Report of the ~~Operating Partnership, threatened by~~ Company on Form 8-K filed with the ~~Commission~~Commission since the filing of the end of the fiscal year to which such Annual Report relates. The ~~Registration Statement, as of~~ documents included in the ~~date hereof, and any post-effective amendment thereto, as of its applicable effective date and~~ Offering Memorandum at ~~each deemed effective date~~ the time they were filed with ~~respect to Agents pursuant to Rule 430B(f)(2) and at each Settlement Date,~~ the Commission complied and will comply in all material respects with the ~~Securities Act~~requirements of the Exchange Act and the rules and regulations of the Commission thereunder (the "Exchange Act Regulations"), and, when read together with the other information in the Offering Memorandum, at the date of the Offering Memorandum and ~~did~~ at the Closing Date, do 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, 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 accountants who certified the ~~Registration Statement~~ financial statements and supporting schedules included in the ~~Prospectus,~~ Offering Memorandum are independent public accountants with respect to the Company ~~(including~~ and its ~~agents and representatives, other than~~ subsidiaries within 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) meaning of ~~the Securities Act or Rule 134~~ Regulation S-X 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 InformationAct. (e) The ~~Company was not an “ineligible issuer” (as defined~~ financial statements, together with the related schedules and notes, included in ~~Rule 405) as~~ the Offering Memorandum present fairly the financial position of the ~~eligibility determination date for purposes~~ Company and its consolidated subsidiaries at the dates indicated and the statement of ~~Rules 164~~ operations, stockholders' equity and ~~433 under the Securities Act with respect to the offering~~ cash flows of the ~~Placement Shares contemplated by~~ Company and its consolidated subsidiaries for the ~~Registration Statement and~~ periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the ~~Prospectus~~periods involved. The supporting schedules, if any, included in the Offering Memorandum present fairly in accordance with GAAP the information required to be stated therein. (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, 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 tobeen

Appears in 1 contract

Sources: Purchase Agreement (First Industrial Realty Trust Inc)

Representations and Warranties of the Company and the Operating Partnership. ~~The~~ Each of the Company and the Operating Partnership, ~~jointly~~ on a joint and ~~severally~~several basis, ~~represent~~ represents and ~~warrant~~ warrants to and agrees with each of the ~~Agent that as of~~ Underwriters on the date hereof, as at the Time of ~~each Representation~~ Sale, on the Closing Date (as defined ~~below~~in Section 5) and on ~~which a certificate is required to be delivered pursuant to~~ each Option Closing Date (as defined in Section ~~7(q~~4), ~~and as of the time of each sale of any Placement Shares pursuant to this Agreement~~if 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 or the Prospectus is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission and any request on the part of the Commission for additional information has been ~~issued~~ satisfied in all material respects. (b) The Preliminary Prospectus filed as part of the Registration Statement or pursuant to Rule 424 under the Securities Act, when so filed, complied in all material respects with the Securities Act and the rules and regulations thereunder (including, without limitation, Rules 424, 430A or 430C under the Securities Act). (i) The Registration Statement, including any post-effective amendments thereto, when it became effective and at the time of execution of this Agreement, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact 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 and the rules and regulations thereunder; (iii) at no time during the period that began on the date of the Preliminary Prospectus and ended immediately prior to the execution of this Agreement did the Preliminary Prospectus 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; (iv) the Preliminary Prospectus furnished to the Underwriters for delivery to prospective investors complied in all material respects with the Securities Act (including, without limitation, the requirements of Section 10 of the Securities Act); (v) the Time of Sale Prospectus does not, and at the Time of Sale, at the Closing Date and, if applicable, at each Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vi) each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus and was accompanied or preceded by the ~~Commission~~then-most recent Preliminary Prospectus, to the extent required by Rule 433 under the Securities Act; (vii) 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) each individual Written Testing-the-Waters Communication, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (ix) the Prospectus, as of ~~its~~ the date it is filed with the Commission pursuant to Rule 424(b) under the Securities Act, at the Closing Date and as at each Option Closing Date, if any, will comply in all material respects with the Securities Act (including, without limitation, Section 10(a) of the ~~date of any amendment or supplement~~ Securities Act) and ~~on any Settlement Date, did not, does not~~ the rules and regulations thereunder and 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; 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, the Time of Sale Prospectus, any Preliminary Prospectus, the Permitted Free Writing Prospectus, any road show, any Written Testing-the-Waters Communication or the Prospectus or any amendments or supplements (or prospectus wrapper) thereto based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being agreed that the only information furnished by the Underwriters to the Company expressly for use therein are the statements contained in the first sentence of the first paragraph (regarding selling concessions) under the caption “Underwriting—Commissions and Discounts” and the second, third and fourth paragraphs (regarding short sales and stabilizing transactions, and penalty bids) under the caption “Underwriting—Price Stabilization, Short Positions and Penalty Bids” of the Time of Sale Prospectus and the Prospectus (collectively, the “Underwriter Information”). (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, the Permitted Free Writing Prospectuses and/or any Permitted Testing-the-Waters Communication; 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, any Permitted Testing-the-Waters Communication 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 Rules 164 and 433 under the Securities Act; assuming that such Permitted Free Writing Prospectus is 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 Rules 164 and 433 under the Securities Act; 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 Rules 164 and 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; and, 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. (e) The Company was not an “ineligible issuer” (as defined in Rule 405 under the Securities 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 Shares contemplated by the Registration Statement and is not currently an “ineligible issuer.” (f) From the time of initial confidential submission of the Registration Statement through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”). (g) Each of the Company and the Operating Partnership (i) has not alone engaged in any Testing-the-Waters Communication and (ii) has not authorized anyone other than the Representatives to engage in such communications; the Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications; as of the Applicable Time, each Permitted Testing-the-Waters Communication, when considered together with the Time of Sale Prospectus, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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 posteach Permitted Written Testing-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 “wellthe-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 StatementWaters Communication does not, 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~~ Statement, the Preliminary Prospectus and the Prospectus~~, including any document incorporated by reference therein that~~ ; and the Company has ~~not been superseded or modified and, when taken together with~~ filed publicly on the ~~Prospectus accompanying, or delivered~~ Commission’s ▇▇▇▇▇ database (“▇▇▇▇▇”) at least 21 calendar days 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~~road show” (as defined in Rule ~~405) as of the eligibility determination date for purposes of Rules 164 and~~ 433 under the Securities ~~Act with respect~~ Act), any confidentially submitted registration statement and registration statement amendments relating to the ~~offering~~ offer and sale 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 filedShares. (h) To On the ~~knowledge~~ date hereof and at the Time of Sale, the Company has no subsidiaries (as defined under the Securities Act) other than the Operating Partnership; and, upon completion of the Formation Transactions and on the Closing Date and each Option Closing Date, the Company has no subsidiaries (as defined under the Securities Act) other than those entities listed on Schedule III (the “Controlled Subsidiaries”), and those entities listed on Schedule IV (the “Non-Controlled Subsidiaries”, and, together with the Controlled Subsidiaries, the “Subsidiaries”); other than membership interests in the Subsidiaries, the Company does not own, directly or indirectly, any shares of common stock or equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity other than as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus; complete and correct copies of the charters and of the bylaws or other formation documents of the Company and each of the ~~Operating Partnership~~Subsidiaries and all amendments thereto have been delivered to the Representatives or their counsel, and, except as set forth in the Registration Statement or in the exhibits to the Registration Statement, no changes therein will be made on or after the date hereof through and including the Closing Date or, if later, any Option Closing Date. (i) The Shares are approved for listing on the Nasdaq Capital Market (the “Exchange”), subject only to official notice of issuance. To the Company’s knowledge, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), ) and (ii) the ~~Company~~ Company, the Operating Partnership, the Predecessor, or any of the ~~Company’s~~ Subsidiaries, or any of their respective officers, ~~directors,~~ directors or 5% or greater security holders or any beneficial owner of the Company’s , or any of the Subsidiaries’ unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date of on which the ~~Prospectus~~Registration Statement was initially filed with the Commission, except as ~~has been~~ disclosed to in the ~~Representatives in writing~~Registration Statement (excluding the exhibits thereto), the Time of Sale Prospectus and the Prospectus. (ij) The Company has been duly incorporated, is validly existing as a corporation and is in good standing under the laws of the State of Maryland, has the corporate power and authority to own its property, enter into and ~~lease~~perform its obligations under this Agreement and the Transaction Agreements, ~~as the case may be, its property~~ and to ~~operate its property and~~ conduct its business as described in the Registration ~~Statement~~ Statement, the 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 reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), ~~earnings, properties,~~ management, results of ~~operations~~ operations, earnings 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~~ hereby, including the Formation Transactions (the occurrence of any such effect, prevention, interference or result described in the foregoing ~~clauses~~ clause (i) or (ii) being herein referred to as a “Material Adverse Effect”). The Company is the sole general partner of the Operating Partnership. Additionally, the Company will contribute the net proceeds from the sale of the Shares to the Operating Partnership in exchange for a number of common units of partnership interest in the Operating Partnership (the “OP Units”) equal to the number of Shares sold in the Offering. (jk) The ~~Operating Partnership~~ Predecessor has been duly ~~organized~~formed, is validly existing as a limited ~~partnership~~ liability company and is in good standing under the laws of the State of ~~Delaware~~ Delaware, has the ~~full~~ power and authority to own ~~or lease~~its property, as enter into and perform its obligations under the ~~case may be~~Transaction Agreements, ~~its property~~ to the extent a party thereto, and to ~~operate its property and~~ conduct its business as described in the Registration ~~Statement and~~ Statement, the Time of Sale Prospectus 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 to be in good standing would ~~not, individually or in the aggregate,~~ not have a Material Adverse Effect; all of the issued interests in the Predecessor have been duly and validly authorized and issued and are fully paid and, except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, will be owned as of the Closing Date, and are owned as of the Closing Date and Option Closing Date, directly by the Operating Partnership, free and clear of all liens, encumbrances, security interests, equities or claims. (kl) ~~Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the~~ The Operating Partnership ~~(each a “Subsidiary” and collectively the “Subsidiaries”)~~ has been duly ~~organized~~formed, is validly existing as a ~~corporation,~~ limited partnership ~~or limited liability company~~ in good standing under the laws of the ~~jurisdiction~~ State of ~~its organization~~Delaware, has the ~~full~~ power and authority to own ~~or lease~~its property, as enter into and perform its obligations under the ~~case may be~~Transaction Agreements, ~~its property~~ to the extent a party thereto, and to ~~operate its property and~~ conduct its business as described in the Registration ~~Statement and~~ Statement, the Time of Sale Prospectus or 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 to 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 OP Units have been duly and ~~outstanding shares of capital stock, units of limited partnership interest~~ validly authorized and ~~units of membership interest of each Subsidiary~~ issued and are fully paid and are owned directly by the ~~Company or the Operating Partnership directly or indirectly~~Company, free and clear of all liens, encumbrances, security interests, ~~liens, mortgages, encumbrances, pledges, claims~~ equities 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 takenclaims. (m) ~~The~~ Each Subsidiary (other than the Operating Partnership and the Predecessor) has been duly incorporated, formed or organized, as applicable, is validly existing as a corporation, limited partnership or limited liability company and is in good standing under the laws of the jurisdiction of its organization, has the ~~partnership~~ power and authority to ~~execute~~ own its property, enter into and ~~deliver this Agreement and to~~ perform its obligations ~~hereunder and all limited partnership action required to be taken for~~ under the ~~due and proper authorization~~Transaction Agreements, ~~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~~ extent a party thereto, 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 conduct its business 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 herewithStatement, the ~~purchasers thereof will receive good, valid and marketable title to such Placement Shares, free and clear~~ Time 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 toSale Prospec

Appears in 1 contract

Sources: Underwriting Agreement (RiverBanc Multifamily Investors, Inc.)

Common use of Representations and Warranties of the Company and the Operating Partnership Clause in Contracts