Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as of the date hereof and the Closing Date that: (a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. (b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, 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 or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel). (c) 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 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; and the Prospectus delivered to the Underwriter for use in connection with the offering of the 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) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. (e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries. (f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole. (g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims. (h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I. (i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities. (j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus. (k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect. (l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Tr
Appears in 2 contracts
Sources: Underwriting Agreement (Brandywine Realty Trust), Underwriting Agreement (Brandywine Realty Trust)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to to, and agrees with, the Underwriter several Underwriters as of the date hereof and the as of each Closing Date (as hereinafter defined) that:
(a) The Registration Statement became effective A registration statement on November 13Form S-11 (No. 333-109816) relating to the Securities, 1997. No stop order suspending the effectiveness including a form of the Registration Statement or any part thereof prospectus, has been issued filed with the Securities and no proceeding for that purpose Exchange Commission (the "COMMISSION") and either (i) has been instituted ordeclared effective under the Securities Act of 1933, as amended (the "ACT") and is not proposed to be amended or (ii) is proposed to be amended by amendment or post-effective amendment. If such registration statement ("INITIAL REGISTRATION STATEMENT") has been declared effective, either (i) an additional registration statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the knowledge of the Transaction Entities, threatened by Securities may have been filed with the Commission or by pursuant to Rule 462(b) ("RULE 462(B)") under the state securities authority of any jurisdiction. No order preventing or suspending Act and, if so filed, has become effective upon filing pursuant to such rule and the use of Securities all have been duly registered under the Prospectus has been issued and no proceeding for that purpose has been instituted or, Act pursuant to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference initial registration statement and, if applicable, any Term Sheet the additional registration statement or (ii) such additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such rule and upon such filing the Securities will all have been duly registered under the Act pursuant to the Prospectus, as of initial registration statement and such additional registration statement. If the date hereof Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and at the time the Registration Statement became effectiveCompany does not propose to amend it, and when if 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 either such registration statement has been filed with the CommissionCommission prior to the execution and delivery of this Agreement, did the most recent amendment (if any) to each such registration statement has been declared effective by the Commission or will comply has become effective upon filing pursuant to Rule 462(c) ("RULE 462(C)") under the Act or, in all material respects with all applicable provisions the case of the Act and will contain all statements required to be stated therein in accordance additional registration statement, Rule 462(b). For purposes of this Agreement, the "EFFECTIVE TIME" with the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet respect to the Prospectusinitial registration statement or, if filed prior to the execution and delivery of this Agreement, the additional registration statement means: (i) if the Company has advised the Representatives that it does not propose to amend such registration statement, the date and time as of which such registration statement, or the date hereof most recent post-effective amendment thereto (if any) filed prior to the execution and at delivery of this Agreement, was declared effective by the time Commission or has become effective upon filing pursuant to Rule 462(c); or (ii) if the Registration Statement became effective, and at Company has advised the Closing Date, and when any Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the Registration Statement or Rule 462(b) Registration Statement becomes effective or any date and time as of which such registration statement, as amended by such amendment or supplement to the Prospectus is filed with the Commission, did or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 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; and the Prospectus delivered to the Underwriter for use in connection with the offering of the 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 Spost-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross incomeeffective amendment, as the case may be, is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to such Properties for additional registration statement means the indicated periods; date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the foregoing financial statements have been prepared initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in conformity with generally accepted accounting principles applied the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a consistent basispart of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(B)") under the Act, and is hereinafter referred to as the supporting schedules included or "INITIAL REGISTRATION STATEMENT." The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference in the Registration Statement present fairly the therein and including all information required (if any) deemed to be stated therein; a part of the pro forma financial informationadditional registration statement as of its Effective Time pursuant to Rule 430A(b), and is hereinafter referred to as the related notes thereto, included or incorporated by reference in the "ADDITIONAL REGISTRATION STATEMENT." The Initial Registration Statement and the Prospectus comply in all material respects Additional Registration Statement are herein referred to collectively as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT." The form of prospectus relating to the Securities, as first filed with the applicable requirements of Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(B)") under the Act and or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the Exchange "PROSPECTUS." No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. For purposes of this Agreement, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect all references to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and Statement, the Prospectus, (i) there has not been any material adverse changepreliminary Prospectus, or any development involving a prospective material adverse change, in amendment or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material supplement to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (each of (1), (2) and (3) above, a "Material Adverse Effect▇▇▇▇▇"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Tr
Appears in 2 contracts
Sources: Underwriting Agreement (Affordable Residential Communities Inc), Underwriting Agreement (Affordable Residential Communities Inc)
Representations and Warranties of the Transaction Entities. a. Each of the Trust, the Corporation, SLT Realty Limited Partnership, a Delaware limited partnership (the "Realty Partnership"), and SLC Operating Limited Partnership, a Delaware limited partnership (the "Operating Partnership" and collectively with the Trust, the Corporation, the Realty Partnership, the Operating Partnership being sometimes hereinafter collectively referred to as the "Transaction Entities Entities" and individually as a "Transaction Entity"), represent and warrant, jointly and severally represents and warrants severally, to the Underwriter Representatives, as of the date hereof hereof, and to the Closing Date thatRepresentatives and each other Underwriter named in the applicable Pricing Agreement, as of the date thereof (in each case, a "Representation Date"), as follows:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.
(b) i. The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, complied, 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 Commissionas of each Representation Date will comply, did or will comply in all material respects with all applicable provisions the requirements of the 1933 Act and will contain all statements required to be stated therein in accordance with the Actrules and regulation thereunder (the "1933 Act Regulations") and the 1939 Act and the rules and regulations thereunder (the "1939 Act Regulations"). The ProspectusRegistration Statement, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, did not, and at the Closing as of each Representation 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 Commissionwill not, did or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 required to be stated therein or necessary to make the statements therein not misleading. 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 Trust and the Corporation for use in connection with an offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective, in which case at the time it is first provided to you for such use) and Closing Time (as such term is defined in Section below) will comply in all material respects with the requirements of the 1933 Act and the 1933 Regulations and will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus delivered made in reliance upon and in conformity with information furnished to the Trust or the Corporation in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or the Prospectus. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Shares willSecurities, at the time Trust and the Corporation have complied or will comply with the requirements of such delivery, be identical Rule 111 under the 1933 Act Regulations relating to the electronically transmitted copies thereof payment of filing fees therefor.
ii. Each preliminary prospectus, Prospectus, preliminary prospectus supplement and 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 the Commission pursuant to ▇▇▇▇▇, except to 1933 Act and the extent permitted by Regulation S-T.1933 Act Regulations thereunder.
(d) iii. The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were, were or hereafter are, filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trfiled
Appears in 2 contracts
Sources: Underwriting Agreement (Starwood Lodging Corp), Underwriting Agreement (Starwood Lodging Corp)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, 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 or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 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; and the Prospectus delivered to the Underwriter for use in connection with the offering of the 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.T
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to [the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.T.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the TrT
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to and agrees with the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and heretofore become effective under the Act; no proceeding for that purpose has been instituted or, to the knowledge stop order of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or are pending or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by and any request on the state securities authority part of any jurisdiction.the Commission for additional information has been complied with;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration Statementlatest Effective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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 each Basic Prospectus complied or will comply, at the Prospectus delivered 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; 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, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectus and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, 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 conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriter are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) as of December 31, 2011, the Company had an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus); all material respects with the applicable requirements of the Act issued and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed non-assessable, have been issued in Schedule I heretocompliance with all federal and state securities laws and were not issued in violation of any preemptive right, all resale right, right of first refusal or similar right and no further approval or authority of the outstanding shares stockholders or the Board of capital stock membership interests or all partnership interests Directors of each subsidiary the Company are owned by required for the Transaction Entities, directly or indirectly, free issuance and clear sale of all liens, encumbrances, security interests and claims.the Shares;
(he) The (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein; and (ii) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and conduct its business and described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, and to execute and deliver this Agreement and to perform its obligations as contemplated herein;
(f) (i) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, condition (financial or otherwise), results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); and (ii) the Operating Partnership is duly qualified to do business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect on Effect;
(g) the earnings, assets or business affairs Company and the Operating Partnership have provided you complete and correct copies of the Transaction Entities articles of incorporation and the by-laws (or comparable organizational documents) of the Company, the Operating Partnership and their subsidiaries considered (as defined under the Exchange Act) (each, a “Subsidiary” and collectively, the “Subsidiaries”) and all amendments thereto have been delivered to you and, except as set forth in the exhibits to the Registration Statement or any Incorporated Document, 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; the Company, through two wholly-owned Subsidiaries, owned approximately 95.9% of the outstanding units of partnership interest in the Operating Partnership as of December 31, 2011; each of the “significant subsidiaries” of the Company as defined in Rule 405 of the Securities Act and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing as a single enterprise)corporation, and has all limited liability company, limited partnership or trust, as applicable, in good standing under the laws of the jurisdiction of its organization, with full power and authority necessary to own or hold own, lease and operate its properties, properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any; each Subsidiary is duly qualified to do business in which it is engaged as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and to enter into and perform its obligations under this Agreement. The Company 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 good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and effectin good standing would not, and individually or in the aggregate percentage interests aggregate, have a Material Adverse Effect; each of the Company and the limited partners Operating Partnership has no “significant subsidiary,” other than as set forth in Annex A hereto; all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company or the Operating Partnership subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company, the Operating Partnership nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration nor has any event occurred which with notice, lapse of Trust, articles of incorporation, certificate of incorporation; partnership agreement time or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate both would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a any breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement under or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trgive
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The Registration Statement became has been declared effective on November 13, 1997. No under the Act; no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding proceedings for that such purpose has have been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened are contemplated by the Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Commission; each Preliminary Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effectiveof filing thereof, 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 or will comply complied in all material respects with all applicable provisions to the requirements of the Act and will contain all statements required to be stated therein the last Preliminary Prospectus distributed in accordance connection with the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet to the Prospectus, as offering 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, Shares did or will comply in all material respects with all applicable provisions of the Act and will 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. On the date the Registration Statement was declared effective, on the date hereofnot, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 does 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; the Registration Statement complied when it became effective, complies and the Prospectus delivered to the Underwriter for use in connection with the offering of the Shares willwill comply, at the time of such deliverypurchase and any additional time of purchase, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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 ActAct and the Prospectus will comply, andas of its date and at the time of purchase and any additional times of purchase, when read together in all material respects with the requirements of the Act and any statutes, regulations, contracts or other information in and incorporated by reference documents that are required to be described in the ProspectusRegistration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been and will be so described or filed; the conditions to the use of Form S-11 have been satisfied; the Registration Statement did not when it became effective, does not and will not, at the time the Registration Statement became effectiveof purchase and any additional time of purchase, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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 and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, 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 light of the circumstances under which they were made, not misleading. The foregoing representations and warranties in this Section 6(d) do not apply ; provided, however, that the Transaction Entities make no warranty or representation with respect to any statements statement contained in the Preliminary Prospectus, the Registration Statement or omissions made the Prospectus in reliance on upon and in conformity with information relating to the concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company by expressly for use in the Underwriter specifically for inclusion in Preliminary Prospectus, the Registration Statement or the Prospectus; and the Company has not distributed and will not distribute any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Preliminary Prospectus or any amendment or supplement thereto.and the Prospectus;
(eb) The historical financial statements as of the date of this Agreement, the Company has an authorized and outstanding capitalization as set forth under the heading “Historical Combined” in the section of the Registration Statement and the related notes theretoProspectus entitled “Capitalization” and, included as of the time of purchase and the additional time of purchase, as the case may be, the Company shall have an authorized and outstanding capitalization as set forth under the heading “Pro forma Consolidated” in the section of the Registration Statement and the Prospectus entitled “Capitalization”; 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 federal and state securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right;
(c) the Company has been duly incorporated by reference and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus, comply in all material respects with to execute and deliver this Agreement and to issue, sell and deliver the requirements of the Act and the Exchange Act, Shares as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.contemplated herein;
(fd) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign trust for the transaction of business corporation and is in good standing under in each jurisdiction where the laws ownership or leasing of each other jurisdiction in which it owns its properties or leases properties, or conducts any business, so as to require the conduct of its business requires such qualification, other than except where the failure to be so qualified or and in good standing would not (1) not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or financial condition, results of operations operation or prospects of the Transaction Entities Company and their subsidiaries, the Subsidiaries (as hereinafter defined) taken as a whole, whole (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "“Material Adverse Effect"”); except for investments in subsidiaries ;
(including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus e) the Company has no direct or indirect equity or subsidiaries (as defined in Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”)) other than the subsidiaries set forth in Annex A hereto (each, a “Subsidiary” and collectively, the “Subsidiaries”); the Company, through two wholly-owned Subsidiaries, owns approximately 91.7% of the outstanding units of limited partnership interest in any corporationthe Operating Partnership; complete and correct copies of the articles of incorporation and the by-laws of the Company and the Subsidiaries (or comparable organizational documents) and all amendments thereto have been delivered to you, partnershipand except as set forth in the exhibits to the Registration Statement no changes therein will be made subsequent to the date hereof and prior to the time of purchase or, trust or other entityif later, the additional time of purchase; each subsidiary of the subsidiaries of Company set forth in Annex B hereto (each, a “Significant Subsidiary” and collectively, the Transaction Entities is defined on Schedule I hereto and “Significant Subsidiaries”) has been duly organized and is validly existing as a corporation, limited liability company company, limited partnership or general or limited partnershiptrust, as the case may beapplicable, in good standing under the laws of its the jurisdiction of organization its organization, with corporate, limited liability company or partnership full power and authorityauthority to own, as the case may be, to own or lease and operate its properties and to conduct its business as presently conducted and as described in the Registration Statement and the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of ; each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, Significant Subsidiary is duly qualified to do business as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not not, individually or in the aggregate, have a Material Adverse Effect on Effect; the earnings, assets or business affairs of the Transaction Entities and their subsidiaries considered as a single enterprise), and Operating Partnership has all partnership full power and authority necessary to own or hold its properties, to conduct the business in which it is engaged execute and deliver this Agreement and to enter into and perform its obligations under this Agreement. The Company is the sole general partner as contemplated herein; all of the Operating Partnership. The Agreement outstanding shares of Limited Partnership capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(f) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(g) the shares of Common Stock and the equity interests in the Operating Partnership (“OP Units”) issued in connection with the "Operating Partnership Agreement") is in full force and effect, and the aggregate percentage interests of Formation Transactions have been duly authorized for issuance by the Company and the limited partners in and, as applicable, the Operating Partnership and have been validly issued and, in the case of the Company, are as set forth on Schedule I.fully paid and non-assessable; the issuance and sale by the Company of the shares of Common Stock and by the Operating Partnership of OP Units in connection with the Formation Transactions are exempt from the registration requirements of the Securities Act and applicable state securities and blue sky laws;
(h) the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus and the certificates for the 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 holders;
(i) This this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.;
(j) The Shares have each of the Formation Transaction Agreements has been duly authorized andauthorized, when issued executed and delivered to by each of the Underwriter Company, the Operating Partnership or Extra Space Storage LLC, as applicable, and constitutes a valid and binding obligation of the Company, the Operating Partnership or Extra Space Storage LLC, as applicable, enforceable against payment therefor the Company, the Operating Partnership or Extra Space Storage LLC, as applicable, in accordance with its terms, subject to the terms hereofeffect of: (a) bankruptcy, will be validly issuedinsolvency, fully paid reorganization, receivership, moratorium and nonassessable. Application has been made to list other laws affecting creditors’ rights (including, without limitation, the Shares on effect of statutory and other law regarding fraudulent conveyances, fraudulent transfers and preferential transfers), (b) the NYSE. The form exercise of certificate judicial discretion and the application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of whether the Formation Transaction Agreements are considered in a proceeding in equity or at law), and (c) the unenforceability under certain circumstances under law or court decisions of provisions providing for the Shares will comply indemnification of or contribution to a party with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled respect to preemptive a liability where such indemnification or other rights contribution is contrary to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.public policy;
(k) Neither neither the Transaction Entities Company nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1nor has any event occurred which with notice, lapse of time or both would result in any breach 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 Declaration of Trustrespective charter, articles of incorporationby-laws, certificate of incorporation; partnership limited liability company agreement or other charter document as the case may be (in each case as amended to the date of this Agreement)partnership agreement, (2) its Bylaws (as amended to the date of this Agreement) or (3B) any indenture, mortgage, deed of trust, bank loan agreementor credit agreement or other evidence of indebtedness, partnership agreement or any license, lease, contract or other agreement or instrument or obligation to which such Transaction Entity the Company or any of it subsidiaries the Subsidiaries is a party or by which it any of them or any of its their properties is boundmay be bound or affected, except, with respect to clauses in case of (2) and (3B), for violations and defaults which individually or in the aggregate as would not have a Material Adverse Effect; , and the issue execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated hereby will not conflict with or with, result in any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of any of the terms or provisions of, or constitute a default under) (A) the charter or by-laws of the Company or any of the Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan agreement, partnership or credit agreement or other material evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of the Transaction Entities or any of its subsidiaries Subsidiaries is a party or by which any of the Transaction Entities them or any of its subsidiaries is their respective properties may be bound or affected, or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to which the Company or any of the property or assets Subsidiaries, except, in case of the Transaction Entities or any of its subsidiaries is subject(B), except for such conflictsas would not, breaches, defaults or violations which individually or in the aggregate would not aggregate, have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and ;
(l) no consent, approval, authorization, order, registration consent or qualification order of or filing with any such court federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or body is required for in connection the issue issuance and sale of the Shares or the consummation by the Transaction Entities Company of the transactions contemplated by this Agreementhereby, except such consentsincluding the Formation Transactions, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained other than registration of the Shares under the Act Act, which has been or will be effected, and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or under the rules and regulations of the NASD;
(m) except as set forth in the Registration Statement and the Exchange ActProspectus, (yi) as may be required under state securities no person has the right, contractual or Blue Sky laws otherwise, to cause the Company to issue or Sections 2710 and 2720 sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Conduct Rules Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock or other equity interests of the NASD Company, and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the purchase offer and distribution sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares by as contemplated thereby or otherwise; no person has the Underwriter right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise;
(zn) each of the failure 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, in order to obtain which conduct its respective business, except as would not have a Material Adverse Effect.; neither the Company nor any of the Subsidiaries is in violation of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries, except where such violation, default, revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect;
(lo) Other than as set forth all legal or contemplated governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Prospectus, Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required;
(p) there are no legal actions, suits, claims, investigations or governmental proceedings pending or threatened or, to the knowledge of any of the Transaction Entities, threatened contemplated to which the Company or any of the Subsidiaries or any of their respective directors or officers is a party or of which any of their respective properties is subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not result in a judgment, decree or order having, individually or in the Transaction Entities aggregate, a Material Adverse Effect or their subsidiaries is or may be a party or to which any property of any preventing consummation of the Transaction Entities or their subsidiaries transactions contemplated hereby;
(q) PricewaterhouseCoopers LLP, whose report on the consolidated financial statements of the Company and the Subsidiaries is or may be filed with the subject whichCommission as part of the Registration Statement and the Prospectus, if determined adversely to are independent public accountants as required by the TrAct;
(r) the audited financial statements included in the Registration Statement
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The Registration Statement became and any post-effective on November 13, 1997. No amendment has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission post-effective amendment or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Preliminary Prospectus has been issued and or the Prospectus is in effect; to the Company’s knowledge no proceeding proceedings for that such purpose has have been instituted or, to the knowledge of the Transaction Entities, or are pending before or threatened by the Commission or Commission; and the Company has complied with any request made by the state securities authority of any jurisdictionCommission for additional or supplemental information.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Preliminary Prospectus, as amended or supplemented, filed as part of the date hereof and at the time the Registration Statement became effective, and when any post-effective amendment to the Registration Statement or pursuant to Rule 462(b) Registration Statement becomes effective 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). The Preliminary Prospectus, the Prospectus and any amendment or supplement to the Prospectus is filed thereto (including any prospectus wrapper) prepared in connection with the CommissionOffering, did or at their respective issue dates, at the Closing Date and at each Option Closing Date, if any, complied and will comply in all material respects with all any applicable provisions laws or regulations of the Act and will contain all statements required to be stated therein foreign jurisdictions in accordance with the Act. The which such Preliminary Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by referencesuch amendment or supplement, and as the case may be, are distributed in connection with such offering.
(i) The Registration Statement did not contain and, as amended or supplemented, if applicable, will not contain 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 or will comply in all material respects with all applicable provisions of the Act and will 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. On the date ; (ii) the Registration Statement was declared effective, on the date hereofcomplies and, as of its dateamended 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 begins on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Preliminary Prospectus and the date on which the Preliminary Prospectus Supplement was filed with the Commission and ends immediately prior to the execution of this Agreement did not or will not 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 light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 required to be stated therein or necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) the Preliminary Prospectus delivered furnished to the Underwriter Underwriters for use in connection with the offering of the Shares will, at the time of such delivery, be identical delivery to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they were, or hereafter are, filed with the Commission, prospective investors complied and will comply in all material respects with the Securities Act (including without limitation the requirements of Section 10 of the Exchange Securities Act); (v) the Time of Sale Prospectus does not, and, when read together with other information in and incorporated by reference in at the ProspectusTime of Sale, at the time the Registration Statement became effectiveClosing Date and, and as of the if applicable, each Option Closing Date, the Time of Sale Prospectus, as then amended or during the period specified in Section 5(b) did not and supplemented, if applicable, will not include an not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing ; (vi) each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus and was accompanied or preceded by the 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) the Prospectus (including any Prospectus wrapper), as of the date it is filed with the Commission pursuant to Rule 424(b), at the Closing Date and at each Option Closing Date, 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 will not contain any untrue statement of a material fact or omit to state a material 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 6(d1(c) do not apply to any statements or omissions made in reliance on and in conformity with the Registration Statement, the Time of Sale Prospectus, any Preliminary 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 the any Underwriter furnished in writing 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 name of each Underwriter specifically for inclusion and the number of Shares each Underwriter has agreed to purchase as set forth in the table following the first paragraph and the sixth, seventh, thirteenth, fourteenth, fifteenth and sixteenth paragraphs of the “Underwriting” section 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 and 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 Rules 164 and 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 or any amendment or supplement thereto.
will satisfy the provisions of Rule 164 and Rule 433 (ewithout reliance on subsections (b), (c) The historical financial statements and (d) of Rule 164); the related notes theretoconditions set forth in Rule 433(b)(2) under the Securities Act are satisfied, included or incorporated by reference in and the Registration Statement relating to the offering of the Shares contemplated hereby 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 ProspectusShares, 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 Act and Securities Act; in the Exchange 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, as applicable, and present fairly to the consolidated financial position knowledge of the Transaction Entities and their consolidated subsidiaries Entities, no free writing prospectus prepared by or on behalf of or used by any 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 under the Securities Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Securities Act with respect to the Properties (as defined in offering of the Prospectus) acquired Shares contemplated by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiariesStatement.
(f) Since The Shares are approved for listing on the respective dates New York Stock Exchange (“NYSE”), subject only to official notice of issuance. To the knowledge of the Transaction Entities, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority (“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 the Registration Statement was initially filed with the Commission, except as of which information is given has been disclosed in the Registration Statement (excluding the exhibits thereto), the Time of Sale Prospectus and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and incorporated, is validly existing as a real estate investment trust in good standing under the laws of the state State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland, with trust has the corporate power and authority to own or lease and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the ProspectusRegistration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified as a foreign trust for the transaction of to transact business and is in good standing under the laws of in each other jurisdiction in which it owns the conduct of its business or leases properties, its ownership or conducts any business, so as to require leasing of property requires such qualification, other than where except to the extent that the failure to be so qualified or be in good standing would not (1i) have a material adverse effect on the assets, business, condition (financial or otherwise), business, prospectsearnings, properties, net worth or management, results of operations or prospects of the Transaction Entities and their subsidiariesthe Subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3ii) adversely affect the prevent or materially interfere with consummation of any of the transactions contemplated by this Agreement hereby or the Formation Transactions (each the occurrence of (1)any such effect, (2) and (3) aboveprevention, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as interference or result described in the Registration Statement foregoing clauses (i) or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing (ii) being herein referred to as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims“material adverse effect”).
(h) The Operating Partnership has been duly formed and organized, is validly existing as a limited partnership in good standing under the laws of the State Commonwealth of DelawareVirginia, has the full limited partnership power and authority to own or lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to do transact business as a foreign limited partnership and is in good standing 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 where to the extent that the failure to be so qualified or be in good standing would not not, individually or in the aggregate, have a Material Adverse Effect on the earnings, assets or business affairs of the Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreementmaterial adverse effect. The Company is Company, immediately following the Formation Transactions, will be the sole general partner of the Operating Partnership. The At the Closing Time, the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (the "“Operating Partnership Agreement") is ”), in the form filed as an exhibit to the Registration Statement, will be in full force and effect, and the aggregate percentage interests of the Company and the limited partners in the Operating Partnership are will be as set forth on Schedule I.in the Registration Statement and the Prospectus, assuming no exercise of the Underwriter’s overallotment option to purchase the Additional Shares. Additionally, to the extent any portion of such overallotment option is exercised subsequent to the Closing Date, the Company will contribute the net proceeds from the sale of the Additional Shares to the Operating Partnership in exchange for a number of OP Units equal to the number of Additional Shares issued. The Company will own all of its outstanding OP Units free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(i) Each 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 corporate power and 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, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or 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; except as otherwise disclosed in the Time of Sale Prospectus and the Prospectus, all of the issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, are owned or will be owned directly or indirectly by the Operating Partnership, free and clear of all security interests, liens, mortgages, encumbrances, pledges, equities, claims, restrictions or other defects of any kind (collectively, “Liens”), have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. On the Closing Date, immediately after the consummation of the Formation Transactions, the Operating Partnership will be the only subsidiary of the Company that meets the definition of a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to the Registration Statement.
(j) 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.
(k) The Operating Partnership has the limited 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 consummation by it of the transactions contemplated hereby and thereby have been duly and validly taken.
(l) Each Subsidiary other than the Operating Partnership has the corporate, limited 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 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) This Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(jn) The Shares Formation Transaction Agreements to which each of the Transaction Entities and their respective Subsidiaries is a party have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all and each such Subsidiary, as applicable, and have been, or at the Closing Date will be, duly executed and delivered by each of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument Transaction Entities. The Formation Transaction Agreements to which any each of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of and their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trrespect
Appears in 1 contract
Sources: Underwriting Agreement (Armada Hoffler Properties, Inc.)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The the Registration Statement became has heretofore become effective on November 13, 1997. No under the Act; no stop order of the Commission preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement or any part thereof Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.Commission;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration StatementEffective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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 each Basic Prospectus complied or will comply, at the Prospectus delivered 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 makes no representation or warranty with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; 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, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectus and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, 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 conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) as of June 30, 2006, the Company had an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus); all material respects with the applicable requirements of the Act issued and outstanding shares of capital stock, including the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records Common Stock of the Transaction Entities Company have been duly authorized and their consolidated subsidiaries.validly issued and are fully paid and non-assessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right and no further approval or authority of the stockholders or the Board of Directors of the Company are required for the issuance and sale of the Shares;
(fe) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed incorporated and is validly existing as a real estate investment trust corporation in good standing under the laws of the state State of Maryland, with trust full corporate power and authority to own or own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein;
(f) the Company is duly qualified to do business as a foreign trust for the transaction of business corporation and is in good standing under in each jurisdiction where the laws ownership or leasing of each other jurisdiction in which it owns its properties or leases properties, or conducts any business, so as to require the conduct of its business requires such qualification, other than except where the failure to be so qualified or and in good standing would not (1) not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or financial condition, results of operations or prospects of the Transaction Entities Company and their subsidiaries, the Subsidiaries (as hereinafter defined) taken as a whole, whole (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "“Material Adverse Effect"”); except for investments in ;
(g) the Company has provided you complete and correct copies of the articles of incorporation and the by-laws (or comparable organizational documents) of the Company and its subsidiaries (including any joint ventures)as defined under the Exchange Act) (each, a “Subsidiary” and collectively, the “Subsidiaries”) and all amendments thereto have been delivered to you and, except as set forth in short-term investment securities and in other securities as described in the exhibits to the Registration Statement or Prospectus any Incorporated Document, 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; the Company, through two wholly-owned Subsidiaries, owned approximately 93.1% of the outstanding units of partnership interest in the Operating Partnership as of June 30, 2006; each “significant subsidiary” of the Company has no direct or indirect equity or other interest as defined in any corporation, partnership, trust or other entity; each Rule 405 of the subsidiaries of Securities Act, Extra Space Management, Inc. and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the Transaction Entities is defined on Schedule I hereto and “Significant Subsidiaries”) has been duly organized and is validly existing as a corporation, limited liability company company, limited partnership or general or limited partnershiptrust, as the case may beapplicable, in good standing under the laws of its the jurisdiction of organization its organization, with corporate, limited liability company or partnership full power and authorityauthority to own, as the case may be, to own or lease and operate its properties and to conduct its business as presently conducted and as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and has been duly qualified as a foreign corporationthe Permitted Free Writing Prospectus, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of if any; each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, Subsidiary is duly qualified to do business as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not not, individually or in the aggregate, have a Material Adverse Effect on Effect; the earnings, assets or business affairs of Company has no “significant subsidiary,” other than as set forth in Annex A hereto; the Transaction Entities and their subsidiaries considered as a single enterprise), and Operating Partnership has all partnership full power and authority necessary to own or hold its properties, to conduct the business in which it is engaged execute and deliver this Agreement and to enter into and perform its obligations under this Agreement. The Company is the sole general partner as contemplated herein; all of the Operating Partnership. The Agreement outstanding shares of Limited Partnership capital stock or other equity interests of each of the Operating Partnership (the "Operating Partnership Agreement") is in full force Subsidiaries have been duly authorized and effectvalidly issued, are fully paid and the aggregate percentage interests of non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company subject to no security interest, other encumbrance or adverse claims; and the limited partners no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Operating Partnership Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1nor has any event occurred which with notice, lapse of time or both would result in any breach 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 Declaration of Trustrespective charter, articles of incorporationby-laws, certificate of incorporation; partnership limited liability company agreement or other charter document as the case may be (in each case as amended to the date of this Agreement)partnership agreement, (2) its Bylaws (as amended to the date of this Agreement) or (3B) any indenture, mortgage, deed of trust, bank loan agreementor credit agreement or other evidence of indebtedness, partnership agreement or any license, lease, contract or other agreement or instrument or obligation to which such Transaction Entity the Company or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries Subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities them or any of its subsidiaries is subjecttheir properties may be bound or affected, except for such conflictsexcept, breachesin case of (B), defaults or violations which individually or in the aggregate as would not have a Material Adverse Effect, nor will any such action result in any violation and the execution, delivery and performance of this Agreement, the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue issuance and sale of the Shares or and the consummation by the Transaction Entities of the transactions contemplated by this Agreementhereby will not conflict with, except such consentsresult in any breach or violation of or constitute a default under (nor constitute any event which with notice, approvals, authorizations, orders, registrations lapse of time or qualifications both would result in any breach of or constitute a default under) (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trchart
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to and agrees with the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and heretofore become effective under the Act; no proceeding for that purpose has been instituted or, to the knowledge stop order of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or are pending or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by and any request on the state securities authority part of any jurisdiction.the Commission for additional information has been complied with;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration Statementlatest Effective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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 each Basic Prospectus complied or will comply, at the Prospectus delivered 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; 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, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectus and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, 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 conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriter are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) as of September 30, 2012, the Company had an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus); all material respects with the applicable requirements of the Act issued and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed non-assessable, have been issued in Schedule I heretocompliance with all federal and state securities laws and were not issued in violation of any preemptive right, all resale right, right of first refusal or similar right and no further approval or authority of the outstanding shares stockholders or the Board of capital stock membership interests or all partnership interests Directors of each subsidiary the Company are owned by required for the Transaction Entities, directly or indirectly, free issuance and clear sale of all liens, encumbrances, security interests and claims.the Shares;
(he) The (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein; and (ii) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and conduct its business and described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, and to execute and deliver this Agreement and to perform its obligations as contemplated herein;
(f) (i) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, condition (financial or otherwise), results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); and (ii) the Operating Partnership is duly qualified to do business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect on Effect;
(g) the earnings, assets or business affairs Company and the Operating Partnership have provided you complete and correct copies of the Transaction Entities articles of incorporation and the by-laws (or comparable organizational documents) of the Company, the Operating Partnership and their subsidiaries considered (as defined under the Exchange Act) (each, a “Subsidiary” and collectively, the “Subsidiaries”) and all amendments thereto have been delivered to you and, except as set forth in the exhibits to the Registration Statement or any Incorporated Document, 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; the Company, through two wholly-owned Subsidiaries, owned approximately 96.3% of the outstanding units of partnership interest in the Operating Partnership as of September 30, 2012; each of the “significant subsidiaries” of the Company as defined in Rule 405 of the Securities Act and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing as a single enterprise)corporation, and has all limited liability company, limited partnership or trust, as applicable, in good standing under the laws of the jurisdiction of its organization, with full power and authority necessary to own or hold own, lease and operate its properties, properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any; each Subsidiary is duly qualified to do business in which it is engaged as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and to enter into and perform its obligations under this Agreement. The Company 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 good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and effectin good standing would not, and individually or in the aggregate percentage interests aggregate, have a Material Adverse Effect; each of the Company and the limited partners Operating Partnership has no “significant subsidiary,” other than as set forth in Annex A hereto; all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company or the Operating Partnership subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company, the Operating Partnership nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration nor has any event occurred which with notice, lapse of Trust, articles of incorporation, certificate of incorporation; partnership agreement time or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate both would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a any breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement under or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trgi
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the ---------------------------------------------------------- Transaction Entities jointly and severally represents and warrants to the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement described in Section 1 hereof became effective on January 8, 1997 and November 1321, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, 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 or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 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; and the Prospectus delivered to the Underwriter for use in connection with the offering of the 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) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiariesEntities, together with related notes, to the extent incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; except as otherwise stated in the Registration Statement or the Prospectus, the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed incorporated and is validly existing as a real estate investment trust in good standing under the laws of the state of MarylandAlabama, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures)their subsidiaries, in short-term investment securities and in other securities as described in the Registration Statement or Prospectus Prospectus, the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities Company is defined listed on Schedule I hereto and has ---------- been duly organized and is validly existing as a corporation, limited liability company or general partnership or limited partnershipliability corporation, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, partnership or limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company partnership or foreign general or limited partnershipliability company, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in the Prospectus or in Schedule I hereto, all the outstanding shares of capital stock membership interests or and all partnership interests of each subsidiary are owned by the Transaction EntitiesCompany, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. The Company General Partner is the sole general partner of the Operating Partnership. The Agreement of Limited Partnership of the Operating Partnership Partnership, as amended (the "Operating Partnership Agreement") is in full force and effect, and the aggregate percentage interests of the Company Company, the General Partner and the limited partners in the Operating Partnership are as set forth on Schedule I.in the Prospectus.
(i) The General Partner has been duly formed and is validly existing as a corporation in good standing under the laws of the State of Alabama, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all corporate power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. All of the issued and outstanding capital stock of the General Partner 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. No shares of capital stock of the General Partner are reserved for any purpose, and there are no outstanding securities convertible into or exchangeable for any capital stock of the General Partner, 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 the General Partner.
(j) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(jk) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest capital stock of the Company conform conforms to the description thereof in the Registration Statement and the Prospectus.
(kl) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration Articles of TrustIncorporation, articles Certificate of incorporationIncorporation or partnership agreement, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its their subsidiaries is a party or by which any of the Transaction Entities or of its their subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its their subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles Declaration of Incorporation Trust or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trhavi
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and heretofore become effective under the Act; no proceeding for that purpose has been instituted or, to the knowledge stop order of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or are pending or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by and any request on the state securities authority part of any jurisdiction.the Commission for additional information has been complied with;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration Statementlatest Effective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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 each Basic Prospectus complied or will comply, at the Prospectus delivered 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; 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, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectus and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, 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 conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) as of March 31, 2008, the Company had an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus); all material respects with the applicable requirements of the Act issued and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed non-assessable, have been issued in Schedule I heretocompliance with all federal and state securities laws and were not issued in violation of any preemptive right, all resale right, right of first refusal or similar right and no further approval or authority of the outstanding shares stockholders or the Board of capital stock membership interests or all partnership interests Directors of each subsidiary the Company are owned by required for the Transaction Entities, directly or indirectly, free issuance and clear sale of all liens, encumbrances, security interests and claims.the Shares;
(he) The (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein; (ii) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and conduct its business and described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, and to execute and deliver this Agreement and to perform its obligations as contemplated herein;
(f) (i) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, condition (financial or otherwise), results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); (ii) the Operating Partnership is duly qualified to do business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect on Effect;
(g) the earnings, assets or business affairs Company and the Operating Partnership have provided you complete and correct copies of the Transaction Entities articles of incorporation and the by-laws (or comparable organizational documents) of the Company, the Operating Partnership and their subsidiaries considered (as defined under the Exchange Act) (each, a “Subsidiary” and collectively, the “Subsidiaries”) and all amendments thereto have been delivered to you and, except as set forth in the exhibits to the Registration Statement or any Incorporated Document, 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; the Company, through two wholly-owned Subsidiaries, owned approximately 92.92% of the outstanding units of partnership interest in the Operating Partnership as of March 31, 2008; each of the “significant subsidiaries” of the Company as defined in Rule 405 of the Securities Act and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing as a single enterprise)corporation, and has all limited liability company, limited partnership or trust, as applicable, in good standing under the laws of the jurisdiction of its organization, with full power and authority necessary to own or hold own, lease and operate its properties, properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any; each Subsidiary is duly qualified to do business in which it is engaged as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and to enter into and perform its obligations under this Agreement. The Company 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 good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and effectin good standing would not, and individually or in the aggregate percentage interests aggregate, have a Material Adverse Effect; each of the Company and the limited partners Operating Partnership has no “significant subsidiary,” other than as set forth in Annex A hereto; all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company or the Operating Partnership subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company, the Operating Partnership nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration nor has any event occurred which with notice, lapse of Trust, articles of incorporation, certificate of incorporation; partnership agreement time or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate both would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a any breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement under or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trgive th
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The the Registration Statement became 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 November 13, 1997. No 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 Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement or any part thereof Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.Commission;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form S-3 in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to (including, without limitation, Rule 415(a)(5) under the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in Act); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration StatementEffective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, 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; each Basic Prospectus complied or will comply, as of its date and the Prospectus delivered date 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, complied, in all material respects, with the requirements of the Exchange Act, and, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectuses and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) as of the date of this Agreement, the Company has an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectuses and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, the Company shall have an authorized and outstanding capitalization as set forth under the heading “As Adjusted” in the section of such Properties for the indicated periods; Registration Statement, the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, Pre-Pricing Prospectuses and the supporting schedules included Prospectus entitled “Capitalization” (and any similar sections or incorporated by reference information, if any, contained in any Permitted Free Writing Prospectus) (subject, in each case, to the issuance of shares of Common Stock upon redemption of limited partnership units (“OP Units”) in the Operating Partnership and issuance of shares with respect to equity incentive awards disclosed as outstanding in the Registration Statement present fairly (excluding the information required to be stated therein; the pro forma financial informationexhibits thereto), and the related notes thereto, included or incorporated by reference in the Registration Statement each Pre-Pricing Prospectus and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Actgrant of options, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, incentive units or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly restricted stock under existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as equity incentive plans described in the Registration Statement or Statement, each Pre-Pricing Prospectus and the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entityProspectus); each all of the subsidiaries of the Transaction Entities is defined on Schedule I hereto issued and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock, of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessablenon-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; except as disclosed the Shares are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the Nasdaq Global Market (the “NASDAQ”); the description of the Company’s stock option, restricted stock and other stock plans or arrangements, and the options or other rights granted thereunder, set forth or incorporated by reference in Schedule I heretothe Registration Statement, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by Pre-Pricing Prospectuses and the Transaction EntitiesProspectus accurately and fairly presents the information required to be shown with respect to such plans, directly or indirectlyarrangements, free options and clear of all liens, encumbrances, security interests and claims.rights;
(he) The Operating Partnership the Company has been duly formed incorporated and is validly existing as a limited partnership corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing 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 as contemplated herein;
(f) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and the Subsidiaries (as defined below) taken as a whole (a “Material Adverse Effect”);
(g) the Company has no subsidiaries (as defined under the Act) other than the subsidiaries disclosed in Schedule C hereto (collectively, including the Operating Partnership, the “Subsidiaries”); the Company owns such percentage of the issued and outstanding capital stock or other ownership interests of each of the Subsidiaries as disclosed in Schedule C hereto. Other than the capital stock or other ownership interests of the Subsidiaries, the Company does not own, directly or indirectly, any shares of stock or any other ownership 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 other organizational documents of the Company and each Subsidiary set forth on Schedule D hereto and all amendments thereto have been delivered to you, and 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 incorporated or organized and is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with full power and authority, corporate or otherwise, to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any; each Subsidiary is duly qualified to do business as a foreign corporation or other entity and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect on the earnings, assets or business affairs Effect; all of the Transaction Entities outstanding shares of capital stock of or other ownership interests in each of the Subsidiaries have been duly authorized and their subsidiaries considered validly issued, are, as a single enterprise)applicable, fully paid and has non-assessable, have been issued in compliance with all partnership power applicable securities laws, were not issued in violation of any preemptive right, resale right, right of first refusal or similar right and authority necessary are owned by the Company subject to own no security interest, other encumbrance or hold its propertiesadverse claims; no options, warrants or other rights to conduct purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the business in which it is engaged and to enter into and perform its obligations under this Agreement. The Subsidiaries are outstanding; the Company 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 Company has no “significant subsidiary,” as that term is defined in Rule 1-02(w) of Regulation S-X under the Company and Act, other than the limited partners in the Operating Partnership are as subsidiaries set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction EntitiesE hereto.
(jh) The the Shares have been duly and validly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereofas provided herein, will be duly and validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form non-assessable and free of certificate for the Shares will comply with all applicable legal statutory and NYSE requirements. The holders contractual preemptive rights, resale rights, rights of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for first refusal and similar rights; the Shares. The shares , when issued and delivered against payment therefor as provided herein, will be free of beneficial interest of any restriction upon the Company conform voting or transfer thereof pursuant to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor Company’s charter or bylaws or any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any the Company is a party;
(i) the capital stock of the Transaction Entities or any of its subsidiaries is a party or by which any of Company, including the Transaction Entities or of its subsidiaries is bound or Shares, conforms in all material respects to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject whicheach description thereof, if determined adversely to the Trany, contained or incorporated by reference i
Appears in 1 contract
Sources: Underwriting Agreement (Thomas Properties Group Inc)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to and agrees with the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and heretofore become effective under the Act; no proceeding for that purpose has been instituted or, to the knowledge stop order of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or are pending or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by and any request on the state securities authority part of any jurisdiction.the Commission for additional information has been complied with;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration Statementlatest Effective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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 each Basic Prospectus complied or will comply, at the Prospectus delivered 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; 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, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectus and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, 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 conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriter are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) (i) as of September 30, 2013, the Company had an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), “and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the any Permitted Free Writing Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws all of the state of Maryland, with trust power issued and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock, of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed non-assessable, have been issued in Schedule I heretocompliance with all federal and state securities laws and were not issued in violation of any preemptive right, all resale right, right of first refusal or similar right and no further approval or authority of the outstanding shares Company’s stockholders or the Company’s Board of capital stock membership interests or all partnership interests Directors is required for the issuance and sale of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.Shares;
(he) The (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein; and (ii) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, and to execute and deliver this Agreement and to perform its obligations as contemplated herein;
(f) (i) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, condition (financial or otherwise), results of operations or prospects of the Transaction Entities and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); and (ii) the Operating Partnership is duly qualified to do business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect on Effect;
(g) the earnings, assets Transaction Entities have provided you complete and correct copies of the articles of incorporation and the bylaws (or business affairs comparable organizational documents) of the Transaction Entities and their subsidiaries considered (as defined under the Exchange Act) (each, a single enterprise)“Subsidiary” and collectively, the “Subsidiaries”) and has all partnership power amendments thereto have been delivered to you and, except as set forth in the Registration Statement or any Incorporated Document, no changes therein will be made on or after the date hereof through and authority necessary to own or hold its propertiesincluding the time of purchase or, to conduct if later, any additional time of purchase; 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 Company, through two wholly-owned Subsidiaries, owned approximately 94.3% of the Operating Partnership. The Agreement outstanding units of Limited Partnership of partnership interest in the Operating Partnership (“OP Units”) as of September 30, 2013; each of the "Operating Partnership Agreement"“significant subsidiaries” of the Company as defined in Rule 405 of the Securities Act and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing as a corporation, limited liability company, limited partnership or trust, as applicable, in good standing under the laws of the jurisdiction of its organization, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any; each Subsidiary is duly qualified to do business as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and is in full force good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and effectin good standing would not, and individually or in the aggregate percentage interests aggregate, have a Material Adverse Effect; each of the Company and the limited partners Operating Partnership has no “significant subsidiary,” other than as set forth in Annex A hereto; all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company or the Operating Partnership subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company, the Operating Partnership nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration nor has any event occurred which with notice, lapse of Trust, articles of incorporation, certificate of incorporation; partnership agreement time or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate both would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a any breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement under or other material agreement or instrument to which any of give the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation holder of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trindebtedne
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Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the each Underwriter as of the date hereof and hereof, as of the Applicable Time, as of the Initial Closing Date that(as defined in Section 2(c) below) and as of each Option Closing Date (as defined in Section 2(c) below), if any, and agrees with each Underwriter, as follows:
(ai) The Registration Statement became has become effective on November 13, 1997. No under the 1933 Act; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued is in effect, and no proceeding proceedings for that such purpose has been instituted or, to the knowledge of the Transaction Entities, are pending before or threatened by the Commission or Commission, and the Company has complied with any request made by the state securities authority of any jurisdictionCommission for additional or supplemental information.
(bii) The Registration Statement and the Prospectuscomplies and, including the financial statements, schedules and related notes included in the Prospectus as amended or incorporated therein by reference andsupplemented, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, 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 or will comply in all material respects with all applicable provisions of the Act and will contain all statements required to be stated therein in accordance with the 1933 Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet to the ProspectusEach preliminary prospectus, as of the date hereof and at the time the Registration Statement became effectiveamended or supplemented, 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 or will comply in all material respects with all applicable provisions of the Act and will 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 as part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit pursuant to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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 111 424 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale of the Shares other than the Registration Statement1933 Act, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if anywhen so filed, complied or will comply when so filed in all material respects with all applicable provisions of the 1933 Act (including, without limitation, Rule 424 or Rule 430A under the 1933 Act; ).
(1) The Registration Statement did not contain and, as amended or supplemented, if applicable, will not contain an 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; (2) the Pricing Term Sheet (as defined below), any other Issuer General Use Free Writing Prospectuses, if any, issued at or prior to the Applicable Time and the Pre-Pricing Prospectus as of the Applicable Time, all considered together (collectively, the “General Disclosure Package”), did not, and on the Initial Closing Date and, if applicable, each Option Closing Date, the General Disclosure Package, 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (3) the Prospectus delivered to the Underwriter for use in connection with the offering (including any Prospectus wrapper), as of the Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof date it is filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(dRule 424(b) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, on the Initial Closing Date and at the time they wereeach Option Closing Date, or hereafter areif any, filed with the Commission, complied and will comply in all material respects with the 1933 Act (including, without limitation, the requirements of the Exchange Act, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as Section 10(a) of the Closing Date, or during the period specified in Section 5(b▇▇▇▇ ▇▇▇) did not and will not include an contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing ; provided, however, that the representations and warranties set forth in this Section 6(d1(a)(iii) do not apply to any statements or omissions made in reliance on and in conformity with the Registration Statement, any preliminary prospectus, the General Disclosure Package or the Prospectus (including any Prospectus wrapper) or any amendments or supplements thereto based upon information relating to the any Underwriter furnished in writing to the Company in writing by such Underwriter expressly for use therein (such information being limited to that which is defined herein as the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement theretoUnderwriters’ Information).
(eiv) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect Prior to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiariesexecution of this Agreement, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entitiesnot, directly or indirectly, free and clear offered or sold any Securities by means of all liens, encumbrances, security interests and claims.
any “prospectus” (h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under within the laws meaning 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 used any “prospectus” (within 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 meaning of the Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution offer or sale of the Shares Securities, in each case other than the Pre-Pricing Prospectus and each Permitted Free Writing Prospectus (as defined herein). The Company has not, directly or indirectly, prepared, used or referred to any “free writing prospectuses” (as defined in Rule 405), without the prior written consent of the Representative, other than the Permitted Free Writing Prospectuses. 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 General Disclosure Package or the Prospectus that was not superseded or modified and was accompanied or preceded by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending orthen-most recent preliminary prospectus, to the knowledge of any of extent required by Rule 433 under the Transaction Entities1933 Act. Each Permitted Free Writing Prospectus has been prepared, threatened used or referred to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trin compliance with Rule 164 and
Appears in 1 contract
Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to and agrees with the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and heretofore become effective under the Act; no proceeding for that purpose has been instituted or, to the knowledge stop order of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or are pending or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by and any request on the state securities authority part of any jurisdiction.the Commission for additional information has been complied with;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration Statementlatest Effective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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 each Basic Prospectus complied or will comply, at the Prospectus delivered 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; 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, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectus and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, 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 conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriter are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) as of March 31, 2011, the Company had an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus); all material respects with the applicable requirements of the Act issued and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed non-assessable, have been issued in Schedule I heretocompliance with all federal and state securities laws and were not issued in violation of any preemptive right, all resale right, right of first refusal or similar right and no further approval or authority of the outstanding shares stockholders or the Board of capital stock membership interests or all partnership interests Directors of each subsidiary the Company are owned by required for the Transaction Entities, directly or indirectly, free issuance and clear sale of all liens, encumbrances, security interests and claims.the Shares;
(he) The (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein; (ii) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and conduct its business and described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, and to execute and deliver this Agreement and to perform its obligations as contemplated herein;
(f) (i) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, condition (financial or otherwise), results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); (ii) the Operating Partnership is duly qualified to do business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect on Effect;
(g) the earnings, assets or business affairs Company and the Operating Partnership have provided you complete and correct copies of the Transaction Entities articles of incorporation and the by-laws (or comparable organizational documents) of the Company, the Operating Partnership and their subsidiaries considered (as defined under the Exchange Act) (each, a “Subsidiary” and collectively, the “Subsidiaries”) and all amendments thereto have been delivered to you and, except as set forth in the exhibits to the Registration Statement or any Incorporated Document, 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; the Company, through two wholly-owned Subsidiaries, owned approximately 95.5% of the outstanding units of partnership interest in the Operating Partnership as of March 31, 2011; each of the “significant subsidiaries” of the Company as defined in Rule 405 of the Securities Act and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing as a single enterprise)corporation, and has all limited liability company, limited partnership or trust, as applicable, in good standing under the laws of the jurisdiction of its organization, with full power and authority necessary to own or hold own, lease and operate its properties, properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any; each Subsidiary is duly qualified to do business in which it is engaged as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and to enter into and perform its obligations under this Agreement. The Company 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 good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and effectin good standing would not, and individually or in the aggregate percentage interests aggregate, have a Material Adverse Effect; each of the Company and the limited partners Operating Partnership has no “significant subsidiary,” other than as set forth in Annex A hereto; all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company or the Operating Partnership subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company, the Operating Partnership nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration nor has any event occurred which with notice, lapse of Trust, articles of incorporation, certificate of incorporation; partnership agreement time or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate both would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a any breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement under or other material agreement or instrument to which any of give the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trholder of
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter Agents as of the date hereof hereof, as of the date of each acceptance by the Operating Partnership of an offer for the purchase of Notes (whether to an Agent as principal or through an Agent as agent), as of the date of each delivery of Notes (whether to an Agent as principal or through an Agent as agent) (the date of each such delivery to an Agent as principal being hereafter referred to as a "Settlement Date"), and as of any time that the Closing Date thatRegistration Statement or the Prospectus shall be amended or supplemented as follows:
(a) The Registration Statement became effective Operating Partnership has filed with the Commission a registration statement on November 13Form S-3 (File No. 333-51675) for the registration of debt securities, 1997. No stop order suspending including the effectiveness Notes, under the Securities Act, and the offering thereof from time to time in accordance with Rule 430A or Rule 415 of the Registration Statement or any part thereof Securities Act Rules and Regulations. Such registration statement has been issued declared effective by the Commission. The Prospectus Supplement setting forth the terms of the offer of the Notes contemplated by this Distribution Agreement, and no proceeding for that purpose additional information concerning the Transaction Entities has been instituted or, or will be prepared and will be filed by the Operating Partnership pursuant to the knowledge Rule 424(b) of the Transaction EntitiesSecurities Act Rules and Regulations, threatened on or before the second business day after it is first used in connection with the offer and sale of Notes under this Distribution Agreement (or such earlier time as may be required by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued Securities Act Rules and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdictionRegulations).
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as Each part of the date hereof and at the time the Registration Statement Statement, when such part became or becomes effective, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or Prospectus and any amendment or supplement to the Prospectus is filed with the Commission, did or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 such Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did or will comply in all material respects with all applicable provisions of the Act and will 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 hereofsuch Prospectus, on the date of filing thereof with the Commission and as 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. On the date the Registration Statement was declared effective, on the date hereof, as conformed or will conform in all material respects with the requirements of its datethe Securities Act and the Securities Act Rules and Regulations; the Indenture, on the date of filing thereof with the Commission and as of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus and the Prospectus Supplement did not date hereof conformed or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, complied or will comply when so filed conform in all material respects with all applicable provisions the requirements of the ActTrust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the "TIA"); each part of the Registration Statement, when such part became or becomes effective 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, in the light of the circumstances under which they were made, therein not misleading; and the Prospectus delivered to and any amendment or supplement thereto, on the Underwriter for use in connection with the offering date of the Shares will, at the time of such delivery, be identical to the electronically transmitted copies filing thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) date hereof did not and or will not include 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. The ; except that the foregoing representations and warranties in this Section 6(d) do shall not apply to any (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification under the TIA and (ii) statements in, or omissions made from, any such document in reliance on upon, and in conformity with with, information relating concerning the Agents that was furnished to the Underwriter furnished in writing to the Company Transaction Entities by the Underwriter Agents specifically for inclusion use in the Registration Statement or Prospectus or any amendment or supplement theretopreparation thereof.
(ec) The historical To the best of the Transaction Entities' knowledge, the accountants who certified the financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement and Prospectus are independent public accountants as required by the Securities Act and the Securities Act Rules and Regulations.
(d) The documents incorporated by reference in the Registration Statement, the Prospectus and any amendment or supplement to such Registration Statement or such Prospectus, when they became or become effective under the Securities Act or were or are filed with the Commission under the Exchange Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations of the Commission thereunder (the "Exchange Act Rules and Regulations"), as applicable.
(e) The financial statements of the Operating Partnership set forth or incorporated by reference in the Registration Statement and Prospectus fairly present fairly the information required to be financial condition of the Operating Partnership as of the dates indicated and the results of operations and changes in financial position for the periods therein specified in conformity with generally accepted accounting principles consistently applied through the periods involved (except as otherwise stated therein; the ). The summary financial, pro forma financial information, and the related notes thereto, statistical data included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a basis consistent with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to financial statements presented therein; and the . No other financial and statistical information and data statements are required to be set forth in the Registration Statement and or the Prospectus are accurately presented in all material respects under the Securities Act or the Securities Act Rules and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiariesRegulations.
(f) Since the respective dates The only subsidiaries (as of which information is given defined in the Registration Statement Securities Act Rules and the Prospectus, (iRegulations) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in are the Prospectus; and subsidiaries listed on Schedule II hereto (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise"Subsidiaries"), business, prospects, properties, net worth or results of operations . Each of the Transaction Entities ----------- and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and their Subsidiaries has been duly organized incorporated or formed, as the case may be, and is validly an existing as a corporation, limited liability company corporation or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization incorporation or formation, as the case may be. Each of the Transaction Entities and each of its Subsidiaries has full power and authority (corporate and other) to conduct its business as described in the Registration Statement and Prospectus, and is duly qualified 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, except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Transaction Entities taken as a whole; and, other than the Subsidiaries, the Transaction Entities own no material amounts of stock or beneficial interest in any corporation, partnership, joint venture or other business entity and do not own 10% or more of the outstanding voting stock of any entity separately taxable as a corporation under the Internal Revenue Code of 1986, as amended (the "Code").
(g) All of the partnership interests of the Operating Partnership have been duly and validly authorized and issued and are fully paid and approximately 94% of such partnership interests are owned of record and beneficially by the Company free and clear of all perfected liens, charges and encumbrances.
(h) The Notes are as of the date hereof duly authorized by the Transaction Entities for issuance and sale pursuant to this Distribution Agreement and the Indenture; and when duly authenticated and delivered by the Trustee in accordance with corporatethe terms of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee), against payment of the consideration therefor, will be valid and legally binding obligations of the Operating Partnership entitled to the benefit of the Indenture and will be enforceable against the Operating Partnership in accordance with their terms, except to the extent that enforcement thereof may be limited liability company by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) (together, the "Enforceability Limitations") and the execution, delivery and performance of any of such agreements did not and will not, at the time of execution and delivery, and does not and will not constitute a breach of, or a default under, the charter, bylaws or partnership power and authorityagreement, as the case may be, of either of the Transaction Entities or any of their Subsidiaries or any material contract, lease or other instrument to own which the Transaction Entities or lease its properties and conduct its business as presently conducted and as described any of their Subsidiaries is a party or to which any of their property may be bound or any law, administrative regulation or administrative or court decree, except for such breaches or defaults which individually or in the Prospectusaggregate do not involve a material risk to the business, and properties, financial position or results of operations of the Transaction Entities taken as a whole; the Indenture has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws TIA and prior to the issuance of each other jurisdiction in which it owns or leases propertiesthe Notes will be duly authorized, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized executed and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned delivered by the Transaction EntitiesOperating Partnership, directly or indirectlyand assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Operating Partnership, enforceable against the Operating Partnership in accordance with its terms, subject to the Enforceability Limitations; the Notes and the Indenture will conform in all material respects to the statements relating thereto contained in the Prospectus; and the Notes are, in all material respects, in the form contemplated by the Indenture. Upon payment of the purchase price and delivery of the Notes in accordance with this Distribution Agreement, each of the purchasers thereof will receive good, valid and marketable title to such Notes, free and clear of all liens, charges and encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorizedAt the time of each Settlement Date, executed the Notes will be rated at least Baa3 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and delivered at least BBB- by Standard & Poor's Ratings Service ("S&P" and, together with Moody's, the Transaction Entities"Rating Agencies"), or such other rating as to which the Operating Partnership shall have most recently notified the Agents pursuant to Section 5(b)(iv) hereof.
(j) The Shares have been duly authorized andExcept as contemplated in the Prospectus, when issued and delivered subsequent to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form respective dates as of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof which information is given in the Registration Statement and the Prospectus, the Transaction Entities have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, that are material to the Transaction Entities on a consolidated basis, and there has not been any material change in the capital stock, short-term debt or long-term debt of the Transaction Entities, or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Transaction Entities on a consolidated basis.
(k) Neither Except as set forth in the Prospectus, there is not pending or, to the knowledge of the Transaction Entities, threatened any action, suit or proceeding to which any of the Transaction Entities nor is a party, before or by any court or governmental agency or body, that might result in any material adverse change in the condition (financial or other), business, prospects, net worth or results of operations of the Transaction Entities, or might materially and adversely affect the properties or assets thereof.
(l) There are no contracts or documents of the Transaction Entities that are required to be filed as exhibits to the Registration Statement or to any of their subsidiaries is, the documents incorporated by reference therein by the Securities Act or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party Exchange Act or by which it the Securities Act Rules and Regulations or any of its properties is boundthe Exchange Act Rules and Regulations that have not been so filed.
(m) This Distribution Agreement has been duly executed, except, with respect to clauses (2) delivered and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance will be performed by each of the Transaction Entities Entities, and the Indenture has been duly authorized, executed, delivered and performed by the Operating Partnership. The execution of all of this Distribution Agreement and the obligations under this Agreement Indenture and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under, any indenturestatute, mortgage, deed of trust, loan agreement, partnership agreement or other material any agreement or instrument to which any either of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries it is bound or to which any of the property or assets of either of the Transaction Entities or any of its subsidiaries is subject, except for such conflictsthe charter, breachesor bylaws or partnership agreement, defaults or violations which individually or in as the aggregate would not have a Material Adverse Effectcase may be, nor will any such action result in any violation of either of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute Transaction Entities, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any either of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorizationauthorization or order of, orderor filing with, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this AgreementDistribution Agreement and the Indenture in connection with the issuance or sale of the Notes by the Operating Partnership, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under the Securities Act, the TIA or state securities laws; and the Operating Partnership has full power and authority to authorize, issue and sell the Notes as contemplated by this Distribution Agreement and the Indenture, free of any preemptive or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effectsimilar rights.
(ln) Other than as set forth The Transaction Entities have complied in all respects with all laws, regulations and orders applicable to them or contemplated their respective businesses; the Transaction Entities are not in default under any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond debenture, note agreement or evidence of indebtedness, lease, contract or other agreement or instrument to which either of the Transaction Entities is a party or by which either of the Transaction Entities or any of their properties are bound, the violation of which would individually or in the Prospectusaggregate have a material adverse effect on the Transaction Entities, there are and no legal other party under any such agreement or governmental proceedings pending orinstrument to which either of the Transaction Entities is a party, to the knowledge of the Transaction Entities, is in default in any material respect thereunder; and neither of the Transaction Entities is in violation of their organizational documents.
(o) Except as described in the Prospectus, and except for defects or exceptions that are not material in relation to the business of the Transaction Entities, threatened their Subsidiaries and Related Entities (as defined below), taken as a whole: (i) the Transaction Entities and each of their Subsidiaries and any partnership or joint venture in which such party is a participant (a "Related Entity") have good and marketable title to which all of the Properties (as defined in the Prospectus), subject to the exceptions noted in the general warranty deeds issued in connection with the transfer of each property to the Operating Partnership; (ii) the Operating Partnership, its Subsidiaries and Related Entities have valid, subsisting and enforceable (subject to the Enforceability Limitations) leases for the properties described in the Prospectus as leased by them; (iii) no tenant under any of the Transaction Entities or their subsidiaries is or may be a party or leases pursuant to which the Operating Partnership, its Subsidiaries and Related Entities lease their Properties has an option or right of first refusal to purchase the premises demised under such lease; (iv) to the knowledge of the Transaction Entities, the use and occupancy of each of the Properties of the Operating Partnership, its Subsidiaries and Related Entities complies in all material respects with all applicable codes and zoning laws and regulations; (v) the Operating Partnership, its Subsidiaries and Related Entities have no knowledge of any property of pending or threatened condemnation or zoning change that will in any material respect affect the size of, use of, improvement of, construction on, or access to any of the Transaction Properties of the Operating Partnership, its Subsidiaries or Related Entities; and (vi) the Operating Partnership, its Subsidiaries and Related Entities have no knowledge of any pending or their subsidiaries is threatened proceeding or may be action that will in any manner materially affect the subject whichsize of, if determined adversely use of, improvements on, construction on, or access to any of the TrProperties of the Operating Partnership, its Subsidiaries or Related Entities.
(p) Title insurance in favor of the mortgagee, th
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13_________, 1997199_. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, 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 or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).financial
(c) 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 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; and the Prospectus delivered to the Underwriter for use in connection with the offering of the Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGA▇, ▇▇▇▇▇, except cept to the extent permitted by Regulation S-T.T
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.to
(e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to [the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiariesEntities], together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiariestheir, taken as a whole.
(g) The Company has been duly formed incorporated and is validly existing as a real estate investment trust corporation in good standing under the laws of the state of Maryland___________, with trust corporate power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.the
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware________, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. The Company General Partner 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 Company, the General Partner and the limited partners in the Operating Partnership are as set forth on Schedule I.in the Prospectus.
(i) The General Partner has been duly formed and is validly existing as a corporation in good standing under the laws of the State of ________, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all corporate power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. All of the issued and outstanding capital stock of the General Partner has been duly authorized and validly issued and
(j) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(jk) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the [NYSE]. The form of certificate for the Shares will comply with all applicable legal and NYSE [NYSE] requirements. The holders of outstanding shares of beneficial interest capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest capital stock of the Company conform conforms to the description thereof in the Registration Statement and the Prospectus.
(kl) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration Articles of TrustIncorporation, articles Certificate of incorporationIncorporation or partnership agreement, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.,
(lm) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the TrTransaction Entities, could individually or in the aggregate reasonably be expected to have a Material Adverse Effect; there are no contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required; and the descriptions of the terms of all such contracts and documents contained or incorporated by reference in the Registration Statement or Prospectus are complete and correct in all material respects.
(n) The authorized capital stock of the Company consists of ___ million shares of Common Stock, $___ par value per share, and ___ million shares of preferred stock, $___ par value per share. All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable.
(o) One of the Transaction Entities or their subsidiaries has good and marketable title to each Property, in each case free of any lien, mortgage, pledge, charge or encumbrance of any kind except those (i) described in the Prospectus or (ii) which do not materially affect or detract from the value of such Property or interfere with the use made and proposed to be made of such Property by the Transaction Entities and their subsidiaries and which individually and in the aggregate are in an amount which is not material to the Transaction Entities.
(p) Except as disclosed in the Prospectus, each entity identified in the Prospectus as a tenant of any Property, or a subtenant thereof, has entered into a lease or a sublease, if applicable, for the possession of such Property; except as disclosed in the Prospectus, each such lease is in full force and effect and neither the Transaction Entities nor any of their subsidiaries has notice of any defense to the obligations of the tenant thereunder or any claim asserted or threatened by any person or entity, which claim, if sustained, would have a Material Adverse Effect; and except as disclosed in the Prospectus, the lessor under each lease has complied with its obligations under such lease in all material respects and neither the Transaction Entities nor any of their subsidiaries has notice of any default by the tenant under such lease which, individually or in the aggregate with other such defaults, would have a Material Adverse Effect.
(q) The mortgages and deeds of trust encumbering the Properties are not (i) cross-defaulted to any indebtedness other than indebtedness of the Transaction Entities or any of their subsidiaries or (ii) cross-collateralized to any property not owned by any of the Transaction Entities or their subsidiaries.
(s) Each of the Transaction Entities has filed all federal, state and foreign income tax returns which have been required to be filed and have paid all taxes indicated by said returns and all assessments received by it to the extent that such taxes have become due and are not being contested in good faith.
(t) Each of the Transaction Entities and each of their subsidiaries owns, possesses and has obtained all material licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all material declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as conducted as of the date hereof, except in each case where the failure to obtain licenses, permits, certificates, consents, orders, approvals and other authorizations, or to make all declarations and filings, would not have a Material Adverse Effect, and none of the Transaction Entities or any of its subsidiaries has received any notice of any proceeding relating to revocation or modification of any such license, permit, certificate, consent, order, approval or other authorization, except as described in the Prospectus and except, in each case, where such revocation or modification would not have a Material Adverse Effect; and the Transaction Entities and each of their subsidiaries are in compliance with all laws, rules and regulations relating to the conduct of their respective businesses as conducted as of the date hereo
Appears in 1 contract
Sources: Underwriting Agreement (Commercial Net Lease Realty Inc)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, hereby represents and warrants to the each Underwriter as of on the date hereof hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Registration Statement became has been declared effective on November 13, 1997by the Commission. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted initiated against the Company or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdictionCommission.
(b) The Company, at the time of initial filing of the Registration Statement and Statement, at the Prospectusearliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of on the date hereof and at on the time Closing Date or the Registration Statement became effective, 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 or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 Additional 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 was not, is filed with the Commission, did or will comply in all material respects with all applicable provisions of the Act not and will contain all statements required to not be stated therein an “ineligible issuer” (as defined 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not 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 111 405 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counselSecurities Act).
(c) Each 462(b) The Registration Statement, if any, complied or will comply when so filed Statement conformed in all material respects with on the Effective Date and will conform in all applicable provisions material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Securities Act; . The most recent Preliminary Prospectus conformed in all material respects, and the Prospectus will conform in all material respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and on the Closing Date and any Additional Closing Date, if applicable, to the applicable requirements of the Securities Act.
(d) The Registration Statement did not or will not not, as of the Effective 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, therein not misleading; and the Prospectus delivered provided that no representation or warranty is made as to the Underwriter for use information contained in connection with the offering of the 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) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time omitted from the Registration Statement became effectivein 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, and which information is specified in Section 15 hereof.
(e) The Prospectus will not, as of its date and on the Closing Date and any Additional Closing Date, or during the period specified in Section 5(b) did not and will not include if applicable, 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. The foregoing representations and warranties ; provided that no representation or warranty is made as to information contained in this Section 6(d) do not apply to any statements or omissions made omitted from the Prospectus in reliance on upon and in conformity with written information relating to the Underwriter furnished in writing to the Company through the Representative by the or on behalf of any Underwriter specifically for inclusion therein, which information is specified in the Registration Statement or Prospectus or any amendment or supplement theretoSection 15 hereof.
(ef) The historical financial Time of Sale Information did not, as of the Time of Sale, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements and the related notes theretotherein, included or incorporated by reference in the Registration Statement 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 Time of Sale Information in reliance upon and in conformity with written information furnished to the ProspectusCompany through the Representative by or on behalf of any Underwriter specifically for inclusion therein, comply which information is specified in Section 15 hereof.
(g) Each Issuer Free Writing Prospectus (including, without limitation, any “road show” (as defined in Rule 433 under the Securities Act) that is a free writing prospectus under Rule 433 under the Securities Act), when considered together with 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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) Each Issuer Free Writing Prospectus conformed or will conform in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Securities Act on the date of first use, and the Exchange Act, as applicable; the assumptions used in preparing Company has complied with all of its prospectus delivery and any filing requirements applicable to such pro forma information are reasonable and the adjustments used therein are appropriate to give effect Issuer Free Writing Prospectus pursuant to the transactions referred Securities Act. The Company has not made any offer relating to therein; and the other financial and statistical information and data set forth Shares that would constitute an Issuer Free Writing Prospectus without the prior written consent of the 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” (as defined in Rule 433 under the Securities Act) in connection with the offering of the Shares will not be required to be filed pursuant to the Securities Act.
(i) From the time of the initial confidential submission of the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books Commission through the date of this Agreement, the Company has been and records of the Transaction Entities and their consolidated subsidiariesis an Emerging Growth Company.
(fj) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, The Company (i) there has not been alone engaged in any material adverse changeTesting-the-Waters Communications, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth has not authorized anyone to engage in Testing-the-Waters Communications and (iii) has not distributed or contemplated approved for distribution any Written Testing-the-Waters Communications. As used herein, “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the ProspectusSecurities Act, neither and “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a “written communication” within the Transaction Entities nor any meaning of their subsidiaries has entered into any transaction or agreement (whether or not in Rule 405 under the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a wholeSecurities Act.
(gk) The Company has been duly formed incorporated and is validly existing as a real estate investment trust corporation in good standing under the laws of the state State of Maryland, with trust Maryland and has the requisite corporate power and authority to own or own, lease and operate its properties and to conduct its business as described in the ProspectusRegistration Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) and to enter into and perform its obligations under this Agreement and the Transaction Agreements, to the extent the Company is a party to such agreements, 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 and the Transaction Agreements, to the extent the Operating Partnership is a party to such agreements. The Company is duly qualified as a foreign trust for the transaction of corporation to transact business and is in good standing under the laws of in each other jurisdiction in which it owns or leases propertiessuch qualification is required, or conducts any business, so as to require such qualification, other than except where the failure to so qualify or to be so qualified or in good standing would not (1) not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, assets, net worth or worth, results of operations or prospects of the Transaction Entities and their subsidiariessubsidiaries (after giving effect to the Formation Transactions), taken as a whole, whole (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "“Material Adverse Effect"”); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(hl) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), Delaware and has all the requisite limited partnership power and authority necessary to own or hold own, lease and operate its properties, properties and to conduct its business as described in the business in which it is engaged Registration Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) and to enter into and perform its obligations under this AgreementAgreement and the Transaction Agreements, to the extent the Operating Partnership is a party to such agreements. The Company 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, except where the failure to so 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 General Partner, the Company and the other limited partners in the Operating Partnership at the Closing Date, after giving effect to the completion of the Formation Transactions, will be as set forth in the Prospectus; provided that to the extent that any Additional Shares are issued and sold on the Closing Date, the percentage interest of the Company and the other limited partners in the Operating Partnership will be adjusted accordingly. At or before the Closing Date, the Amended and Restated 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has will have been duly authorized, executed and delivered by the Transaction EntitiesGeneral Partner and will be 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.
(jm) Each subsidiary of the Transaction Entities (after giving effect to the Formation Transactions) has been duly incorporated or formed and is validly existing in good standing under the laws of the jurisdiction of its incorporation or formation, and each such subsidiary has the requisite corporate or similar power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus (and any amendment or supplement thereto) and is duly qualified to transact business and is in good standing in each other jurisdiction in which such qualification is required, except where the failure to so qualify or to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, all of the outstanding shares of capital stock or other ownership interests of each subsidiary of the Transaction Entities (after giving effect to the Formation Transactions) has been duly authorized and validly issued, is (as applicable) fully paid and nonassessable and is, or upon consummation of the Formation Transactions will be, owned by the Transaction Entities, directly or indirectly through subsidiaries, free and clear of any security interests, liens, encumbrances, equities or claims. None of the outstanding shares of capital stock or other ownership interests of any subsidiary of the Transaction Entities (after giving effect to the Formation Transactions) was issued in violation of the preemptive or similar rights of the securityholder of such subsidiary. The Company does not, and will not upon completion of the Formation Transactions, own or control, directly or indirectly, any corporation, partnership, joint venture, association, trust or other business organization that is or will be a subsidiary other than the entities listed on Schedule V hereto.
(n) The authorized capitalization of the Company as of September 30, 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 duly authorized and validly issued and are fully paid and nonassessable. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or similar rights of any securityholder of the Company. Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, there are no outstanding options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell, transfer or acquire, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for any shares of capital stock of the Company. The Shares to be issued and sold to the Underwriters by the Company hereunder have been duly authorized and, when issued and delivered to the Underwriter Underwriters against full payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list nonassessable and will not be issued in violation of the Shares on preemptive or similar rights of any securityholder of the NYSECompany. The form Private Placement Shares to be issued and sold to CTO by the Company pursuant to the Private Placement Purchase Agreement have been duly authorized and, when issued and delivered to CTO against full payment therefor in accordance with the terms of certificate for the Shares Private Placement Purchase Agreement, will comply with all applicable legal be validly issued, fully paid and NYSE requirementsnonassessable and will not be issued in violation of the preemptive or similar rights of any securityholder of the Company. The holders offer and sale of outstanding shares the Private Placement Shares are exempt from the registration requirements of beneficial interest the Securities Act and applicable state securities laws. The capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform conforms in all material respects to the description thereof in the Registration Statement Statement, the Time of Sale Information and the ProspectusProspectus (or any amendment or supplement thereto).
(ko) Neither The OP Units to be issued by the Transaction Entities nor any Operating Partnership in the Formation Transactions have been duly authorized for issuance by the Operating Partnership and, at the Closing Date, will be validly issued. None of their subsidiaries is, or with the giving of notice or lapse of time or both would be, OP Units to be issued by the Operating Partnership in the Formation Transactions will be issued in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement the preemptive or other charter document as similar rights of any securityholder of the case may Operating Partnership. Other than the OP Units to be (in each case as amended to issued by the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or Operating Partnership in the aggregate would not have a Material Adverse Effect; Formation Transactions, there are no other limited partnership interests in the issue Operating Partnership outstanding. The offer and sale of the Shares and OP Units by the performance by each Operating Partnership in the Formation Transactions are exempt from the registration requirements of the Transaction Entities of all of the obligations under this Agreement Securities Act and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or applicable state securities laws. Except as described in the aggregate would not have a Material Adverse EffectRegistration Statement, nor will any such action result in any violation the Time of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; Sale Information and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal outstanding securities convertible into or governmental proceedings pending orexercisable 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 securities of the knowledge Operating Partnership.
(p) Except as disclosed in the Registration Statement, the Time of any Sale Information and the Prospectus, the Company has no outstanding stock options or other equity-based awards of or to purchase shares of Common Stock pursuant to an equity-based compensation plan or otherwise.
(q) This Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(r) The Transaction Entities and their subsidiaries and the CTO Entities, threatened in each case to which any the extent that each such entity is a party thereto, have the legal right, power and authority to enter into each of the Transaction Agreements. At or before the Closing Date, the Transaction Entities and their subsidiaries and the CTO Entities, in each case, to the extent that each such entity is party thereto, will have duly authorized, executed and delivered each of the Transaction Agreements. Each of the Transaction Agreements will constitute a legally valid and binding obligation of the Transaction Entities or and their subsidiaries and the CTO Entities, in each case, to the extent that each such entity is or a party thereto, enforceable against each of them that is a party thereto in accordance with its terms, except to the extent enforceability may be a party or to which any property limited by (i) the application of any of the Transaction Entities or their subsidiaries is or may be the subject whichbankruptcy, if determined adversely to the Trreorganization, insolvency and other laws affecting cred
Appears in 1 contract
Sources: Underwriting Agreement (Alpine Income Property Trust, Inc.)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act. Each of the Registration Statement became and any post-effective on November 13, 1997. No amendment has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission post-effective amendment or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Preliminary Prospectus has been issued and or the Prospectus is in effect; to the Company’s knowledge no proceeding proceedings for that such purpose has have been instituted or, to the knowledge of the Transaction Entities, or are pending before or threatened by the Commission or Commission; and the Company has complied with any request made by the state securities authority Commission for additional or supplemental information. The date of any jurisdiction.
(b) The this Agreement is not more than three years subsequent to the initial effective date of the Base Registration Statement. At the respective times the Base Registration Statement and the Prospectusany amendment, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet at each deemed effective date with respect to the ProspectusUnderwriters and the Securities pursuant to Rule 430B(f)(2), as of the date hereof and at the time Closing Date, the Registration Statement became effectivecomplied, complies 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 or will comply in all material respects with all applicable provisions the requirements of the Securities Act and the rules and regulations thereunder and did not and will not contain all statements an untrue statement of a material fact or omit to state a material fact required to be stated therein in accordance with or necessary to make the Act. statements therein not misleading.
(b) The Preliminary Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet to the Prospectus, when filed 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 or will comply in all material respects with all applicable provisions of the Act and will 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 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 and 430B under the Securities Act). The Preliminary Prospectus, the Prospectus and any amendment or supplement thereto (including any prospectus wrapper) prepared in connection with the offering and sale of the Shares, at their respective issue dates, at the Closing Date and at each Option Closing Date, if any, complied and will comply, as applicable, in all material respects with any applicable laws or regulations of foreign jurisdictions in which such Preliminary Prospectus, the Prospectus or such amendment or supplement, as the case may be, are distributed in connection with such offering and sale.
(i) The Registration Statement did not contain and, as amended or supplemented, if applicable, will not contain an 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. On the date ; (ii) the Registration Statement was declared effective, on the date hereofcomplies and, as of its dateamended 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 begins on the date of filing the Preliminary Prospectus and the date on which the Preliminary Prospectus was filed with the Commission and ends immediately prior to the execution of this Agreement did the Preliminary Prospectus contain any Rule 462(buntrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iv) Registration Statement 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, 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vi) each Permitted Free Writing Prospectus, if any, does not conflict with the information contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus, including any document incorporated, or deemed to be incorporated, therein by reference, and was accompanied or preceded by the 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) the Prospectus Supplement did not or (including any Prospectus wrapper), as of the date it is filed with the Commission pursuant to Rule 424(b), at the Closing Date and at each Option Closing Date, 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 will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with ; provided, however, that 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 set forth in this Section 6(b1(c) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Time of Sale Prospectus, any Preliminary Prospectus, any Permitted Free Writing Prospectus, any road show or the Prospectus (including any Prospectus wrapper) or any other materialsamendments or supplements thereto based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, if any,permitted it being agreed that the only information furnished by the Act (which were disclosed Underwriters to the Company expressly for use therein are the name of each Underwriter and Underwriter's counselthe number of Shares each Underwriter has agreed to purchase as set forth in the table following the first paragraph, the first paragraph under the heading “Commissions and Discounts” and the second, third and fourth paragraphs under the heading “Price Stabilization, Short Positions and Penalty Bids” of the “Underwriting” section of the Time of Sale Prospectus and the Prospectus (collectively, the “Underwriter Information”).
(c) Each 462(b) . The documents incorporated or deemed to be incorporated by reference in the Registration Statement, if anythe Preliminary Prospectus or the Prospectus, complied when they became effective or at the time they were or hereafter are filed with the Commission, complied, comply and will comply when so filed in all material respects with all applicable provisions the requirements of the Act; Exchange Act and the rules and regulations of the Commission thereunder and, when read together with the other information in the Registration Statement, the Preliminary Prospectus or the Prospectus, (a) at the time the Base Registration Statement originally became effective, (b) at the earlier of the time the Prospectus was first used and the Time of Sale and (c) at the Closing Date and at each Option Closing Date, did not or and will not contain 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, in the light of the circumstances under which they were made, not misleading; and the Prospectus delivered .
(d) Prior to the Underwriter for use execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the 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 offering or sale of the Shares willShares, at in each case other than the time Preliminary Prospectus and 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 such deliverythe Representatives, be identical other than the Permitted Free Writing Prospectuses and road shows furnished or presented to the electronically transmitted copies thereof Representatives before first use. Each Permitted Free Writing Prospectus, if any, 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 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 ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(dRule 433(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act, at the time they were, or hereafter are, filed with the Commission), complied the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on 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 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 offering 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 Exchange 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; and, when read together with other information in and incorporated by reference in to the Prospectus, at the time the Registration Statement became effective, and as knowledge of the Closing DateTransaction Entities, no free writing prospectus prepared by or during on behalf of or used by any Underwriter contains any “issuer information” within the period specified in Section 5(bmeaning of Rule 433(h)(2) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary to make under the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement theretoSecurities Act.
(e) The historical financial statements and Company was not an “ineligible issuer” (as defined in Rule 405 under the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Securities Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries ) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Securities Act with respect to the Properties (as defined in offering of the Prospectus) acquired Shares contemplated by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiariesStatement.
(f) Since At the respective dates Closing Date, the Shares will have been authorized for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance. To the knowledge of the Transaction Entities, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority (“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 the Registration Statement was initially filed with the Commission, except as of which information is given has been disclosed in the Registration Statement (excluding the exhibits thereto), the Time of Sale Prospectus and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and incorporated, is validly existing as a real estate investment trust in good standing under the laws of the state State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland, with trust has the corporate power and authority to own or lease and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the ProspectusRegistration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified as a foreign trust for the transaction of to transact business and is in good standing under the laws of in each other jurisdiction in which it owns the conduct of its business or leases properties, its ownership or conducts any business, so as to require leasing of property requires such qualification, other than where except to the extent that the failure to be so qualified or be in good standing would not (1i) have a material adverse effect on the assets, business, condition (financial or otherwise), business, prospectsearnings, properties, net worth or management, results of operations or prospects of the Transaction Entities and their subsidiariesthe Subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3ii) adversely affect the prevent or materially interfere with consummation of any of the transactions contemplated by this Agreement hereby (each the occurrence of (1)any such effect, (2) and (3) aboveprevention, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as interference or result described in the Registration Statement foregoing clauses (i) or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing (ii) being herein referred to as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims“material adverse effect”).
(h) The Operating Partnership has been duly formed and organized, is validly existing as a limited partnership in good standing under the laws of the State Commonwealth of DelawareVirginia, has the full limited partnership power and authority to own or lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to do transact business as a foreign limited partnership and is in good standing 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 where to the extent that the failure to be so qualified or be in good standing would not not, individually or in the aggregate, have a Material Adverse Effect on the earnings, assets or business affairs of the Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreementmaterial adverse effect. The Company is the sole general partner of the Operating Partnership. The At the Closing Date, the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (as amended, the "“Operating Partnership Agreement") is ”), in the form filed or incorporated by reference as an exhibit to the Registration Statement, will be in full force and effect, and the aggregate percentage interests of the Company and the limited partners in the Operating Partnership are will be as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus, assuming no exercise of the Underwriter’s option to purchase the Additional Shares. Additionally, to the extent any portion of such option to purchase additional shares is exercised subsequent to the Closing Date, the Company will contribute the net proceeds from the sale of the Additional Shares to the Operating Partnership in exchange for a number of common units of limited partnership interest in the Operating Partnership (the “OP Units”) equal to the number of Additional Shares issued. The Company will own all of its outstanding OP Units free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(ki) Neither Each Subsidiary has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the Transaction Entities nor any laws of their subsidiaries isthe jurisdiction of its organization, has the corporate power and authority to own or with the giving of notice or lapse of time or both would belease, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (be, its property and to operate its property and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each case as amended jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the date of this Agreement), (2) its Bylaws (as amended extent that the failure to the date of this Agreement) be so qualified or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or be in the aggregate good standing would not have a Material Adverse Effectmaterial adverse effect; except as otherwise disclosed in the issue and sale Time of the Shares Sale Prospectus and the performance by each of the Transaction Entities of Prospectus, all of the obligations under this Agreement issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, are owned or will be owned directly or indirectly by the consummation Operating Partnership, free and clear of the transactions herein contemplated will not conflict with all security interests, liens, mortgages, encumbrances, pledges, equities, claims, restrictions or result in a breach other defects of any of the terms or provisions ofkind (collectively, or constitute a default under“Liens”), any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or have been issued in the aggregate would compliance with applicable securities laws and were not have a Material Adverse Effect, nor will any such action result issued in any violation of any preemptive or similar rights. On the provisions of Closing Date, the Articles of Incorporation or Operating Partnership will be the ByLaws only subsidiary of the Company or any applicable law or statute or any order, rule or regulation that meets the definition of any court or governmental agency or body having jurisdiction over any a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of the Transaction Entities or any of their properties, except for such violations which individually or in Company are the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse EffectSubsidiaries.
(lj) Other than as set forth or contemplated in The Company has the Prospectuscorporate power and authority to execute and deliver this Agreement party and to perform its obligations hereunder, there are no legal or governmental proceedings pending orand all corporate action required to be taken for the due and proper authorization, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trexecution and deliver
Appears in 1 contract
Sources: Underwriting Agreement (Armada Hoffler Properties, Inc.)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The the Registration Statement became has heretofore become effective on November 13, 1997. No under the Act; no stop order of the Commission preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement or any part thereof Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.Commission;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration StatementEffective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or 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 at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, 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; and each Basic Prospectus complied or will comply, at the Prospectus delivered 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 Underwriter for use in connection with the offering of the Shares willdate hereof) and, 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; at no time during the period that begins on the earlier of the date of such delivery, be identical to Basic Prospectus and the electronically transmitted copies thereof date such Basic Prospectus was filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and ends at the time of purchase did or will any Basic Prospectus, as then amended or 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 werewere made, not misleading, and at no time during such period did or hereafter arewill any Basic Prospectus, as then amended or supplemented, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, complied the date of the Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and will comply 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, in all material respects respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 makes no representation or warranty with respect to any statement contained in the Registration Statement, any Pre-Pricing 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 Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; 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, when read together with other information in Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing representations ;
(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 Pre-Pricing Prospectus and warranties in this Section 6(d) do not apply the Permitted Free Writing Prospectus, if any; the Company has not, directly or indirectly, prepared, used or referred to any statements Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is so sent or omissions made in 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 any Underwriter, 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 conformity with information 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 Underwriter furnished in writing to offering of the Company 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 Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes theretoAct, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with satisfies the requirements of Section 10 of the Act and Act; neither the Exchange Company nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, as applicablefrom using, in connection with the offer and present fairly the consolidated financial position sale of the Transaction Entities Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and their consolidated subsidiaries 433 under the Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) as of the date of this Agreement, the Company has an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized and outstanding capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus); all material respects with the applicable requirements of the Act issued and outstanding shares of capital stock, including the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records Common Stock of the Transaction Entities Company have been duly authorized and their consolidated subsidiaries.validly issued and are fully paid and non-assessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right and no further approval or authority of the stockholders or the Board of Directors of the Company are required for the issuance and sale of the Shares;
(fe) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed incorporated and is validly existing as a real estate investment trust corporation in good standing under the laws of the state State of Maryland, with trust full corporate power and authority to own or own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein;
(f) the Company is duly qualified to do business as a foreign trust for the transaction of business corporation and is in good standing under in each jurisdiction where the laws ownership or leasing of each other jurisdiction in which it owns its properties or leases properties, or conducts any business, so as to require the conduct of its business requires such qualification, other than except where the failure to be so qualified or and in good standing would not (1) not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or financial condition, results of operations operation or prospects of the Transaction Entities Company and their subsidiaries, the Subsidiaries (as hereinafter defined) taken as a whole, whole (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "“Material Adverse Effect"”); except for investments in ;
(g) the Company has provided you complete and correct copies of the articles of incorporation and the by-laws (or comparable organizational documents) of the Company and its subsidiaries (including any joint ventures)as defined under the Exchange Act) (each, a “Subsidiary” and collectively, the “Subsidiaries”) and all amendments thereto have been delivered to you and, except as set forth in short-term investment securities and in other securities as described in the exhibits to the Registration Statement or Prospectus any Incorporated Document, 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; the Company, through two wholly-owned Subsidiaries, owned approximately 90.91% of the outstanding units of partnership interest in the Operating Partnership as of September 30, 2005; each “significant subsidiary” of the Company has no direct or indirect equity or other interest as defined in any corporation, partnership, trust or other entity; each Rule 405 of the subsidiaries of Securities Act, Extra Space Management, Inc. and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the Transaction Entities is defined on Schedule I hereto and “Significant Subsidiaries”) has been duly organized and is validly existing as a corporation, limited liability company company, limited partnership or general or limited partnershiptrust, as the case may beapplicable, in good standing under the laws of its the jurisdiction of organization its organization, with corporate, limited liability company or partnership full power and authorityauthority to own, as the case may be, to own or lease and operate its properties and to conduct its business as presently conducted and as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and has been duly qualified as a foreign corporationthe Permitted Free Writing Prospectus, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of if any; each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, Subsidiary is duly qualified to do business as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not not, individually or in the aggregate, have a Material Adverse Effect on Effect; the earnings, assets or business affairs of Company has no “significant subsidiary,” other than as set forth in Annex A hereto; the Transaction Entities and their subsidiaries considered as a single enterprise), and Operating Partnership has all partnership full power and authority necessary to own or hold its properties, to conduct the business in which it is engaged execute and deliver this Agreement and to enter into and perform its obligations under this Agreement. The Company is the sole general partner as contemplated herein; all of the Operating Partnership. The Agreement outstanding shares of Limited Partnership capital stock or other equity interests of each of the Operating Partnership (the "Operating Partnership Agreement") is in full force Subsidiaries have been duly authorized and effectvalidly issued, are fully paid and the aggregate percentage interests of non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company subject to no security interest, other encumbrance or adverse claims; and the limited partners no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Operating Partnership Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1nor has any event occurred which with notice, lapse of time or both would result in any breach 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 Declaration of Trustrespective charter, articles of incorporationby-laws, certificate of incorporation; partnership limited liability company agreement or other charter document as the case may be (in each case as amended to the date of this Agreement)partnership agreement, (2) its Bylaws (as amended to the date of this Agreement) or (3B) any indenture, mortgage, deed of trust, bank loan agreementor credit agreement or other evidence of indebtedness, partnership agreement or any license, lease, contract or other agreement or instrument or obligation to which such Transaction Entity the Company or any of it subsidiaries the Subsidiaries is a party or by which it any of them or any of its their properties is boundmay be bound or affected, except, with respect to clauses in case of (2) and (3B), for violations and defaults which individually or in the aggregate as would not have a Material Adverse Effect; , and the issue execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated hereby will not conflict with or with, result in any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of any of the terms or provisions of, or constitute a default under) (x) the charter or by-laws of the Company or any of the Subsidiaries, or (y) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Tr
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to and agrees with the Underwriter as of the date hereof and the Closing Date Underwriters that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and heretofore become effective under the Act; no proceeding for that purpose has been instituted or, to the knowledge stop order of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or are pending or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by and any request on the state securities authority part of any jurisdiction.the Commission for additional information has been complied with;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3ASR” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration Statementlatest Effective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; and the each Pre-Pricing Prospectus delivered to the Underwriter for use in connection with the offering of the Shares willcomplied, 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) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they were, or hereafter are, it was filed with the Commission, complied and will comply complies as of the date hereof, in all material respects with the requirements of the Exchange Act, and, when read together ; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with other information in the Commission and incorporated by reference in the Prospectus, ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Registration Statement became effectivePricing Information, and as of the Closing Date, or during the period specified in Section 5(b) did not and will 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 light of the circumstances under which they were made, not misleading. The foregoing representations , and warranties at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, include an untrue statement of a material fact or omit to state a material fact necessary in this Section 6(d) do order to make the statements therein, in the light of the circumstances under which they were made, not apply to any statements misleading; each Basic Prospectus complied or omissions made in reliance 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 and in conformity with information relating or prior to the Underwriter furnished in writing to date hereof) and, at the Company time of purchase, each additional time of purchase, if any, and at all times during which a prospectus is required by the Underwriter specifically for inclusion in Act to be delivered (whether physically or through compliance with Rule 172 under the Registration Statement or Prospectus Act or any amendment or supplement thereto.
(esimilar rule) The historical financial statements and the related notes theretoin connection with any sale of Shares, included or incorporated by reference in the Registration Statement and the Prospectuswill comply, comply in all material respects respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Basic Prospectus and the date such Basic Prospectus was filed with the Commission and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, 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, in all material respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with the Underwriter Information (as defined in Section 10 hereof); 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 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;;
(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 Pre-Pricing Prospectus and the Permitted Free Writing Prospectus, 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 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, as applicablefiled with the Commission), the sending or giving, by any Underwriter, 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 present fairly the consolidated financial position registration statement relating to the offering of the Transaction Entities 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 the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and their consolidated subsidiaries 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 was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by related to the Transaction Entities offering of the Shares contemplated hereby is solely the property of the Company;
(d) (i) as of March 31, 2015, the Company had an authorized and their consolidated subsidiaries, together with related notes, incorporated by reference outstanding capitalization as set forth under the heading “Actual” in the section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus entitled “Capitalization” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), and, as of the Prospectus, present fairly a summary time of gross income purchase and direct operating expenses or a summary any additional time of gross incomepurchase, as the case may be, of such Properties for the indicated periods; Company shall have an authorized capitalization as set forth under the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference heading “As Adjusted” in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in section of the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus comply entitled “Capitalization” (and any similar sections or information, if any, contained in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the any Permitted Free Writing Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws all of the state of Maryland, with trust power issued and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock, of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed non-assessable, have been issued in Schedule I heretocompliance with all federal and state securities laws and were not issued in violation of any preemptive right, all resale right, right of first refusal or similar right and no further approval or authority of the outstanding shares Company’s stockholders or the Company’s Board of capital stock membership interests or all partnership interests Directors is required for the issuance and sale of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.Shares;
(he) The (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein; and (ii) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, and to execute and deliver this Agreement and to perform its obligations as contemplated herein;
(f) (i) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, condition (financial or otherwise), results of operations or prospects of the Transaction Entities and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); and (ii) the Operating Partnership is duly qualified to do business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect on Effect;
(g) the earnings, assets Transaction Entities have provided you complete and correct copies of the articles of incorporation and the bylaws (or business affairs comparable organizational documents) of the Transaction Entities and their subsidiaries considered (as defined under the Exchange Act) (each, a single enterprise)“Subsidiary” and collectively, the “Subsidiaries”) and has all partnership power amendments thereto have been delivered to you and, except as set forth in the Registration Statement or any Incorporated Document, no changes therein will be made on or after the date hereof through and authority necessary to own or hold its propertiesincluding the time of purchase or, to conduct if later, any additional time of purchase; 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 Company, through two wholly-owned Subsidiaries, owned approximately 93.4% of the Operating Partnership. The Agreement outstanding units of Limited Partnership of partnership interest in the Operating Partnership (“OP Units”) as of March 31, 2015; each of the "Operating Partnership Agreement"“significant subsidiaries” of the Company as defined in Rule 405 of the Securities Act and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing as a corporation, limited liability company, limited partnership or trust, as applicable, in good standing under the laws of the jurisdiction of its organization, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any; each Subsidiary is duly qualified to do business as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and is in full force good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and effectin good standing would not, and individually or in the aggregate percentage interests aggregate, have a Material Adverse Effect; each of the Company and the limited partners Operating Partnership has no “significant subsidiary,” other than as set forth in Annex A hereto; all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company or the Operating Partnership subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company, the Operating Partnership nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration nor has any event occurred which with notice, lapse of Trust, articles of incorporation, certificate of incorporation; partnership agreement time or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate both would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a any breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement under or other material agreement or instrument to which any of give the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation holder of any court indebtedness (or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for a person acting on such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (zholder’s behalf) the failure right to obtain which would not have require the repurchase, redemption or repayment of all or a Material Adverse Effect.
part of such indebtedness under) (li) Other than as set forth or contemplated in the Prospectusits respective charter, there are no legal or governmental proceedings pending orbylaws, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trlimited liabilit
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to and agrees with the Underwriter as of the date hereof and the Closing Date Underwriters that:
(a) The Registration Statement became effective on November 13, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and heretofore become effective under the Act; no proceeding for that purpose has been instituted or, to the knowledge stop order of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been issued issued, and no proceeding proceedings for that such purpose has have been instituted or are pending or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened are contemplated by the Commission or by and any request on the state securities authority part of any jurisdiction.the Commission for additional information has been complied with;
(b) The the Registration Statement and the Prospectuscomplied when it became effective, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, complies as of the date hereof and and, as amended or supplemented, at the time the Registration Statement became effectiveof purchase, each additional time of purchase, if any, and when any post-effective amendment 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 Registration Statement or Rule 462(b) Registration Statement becomes effective Act or any amendment or supplement to the Prospectus is filed similar rule) in connection with the Commissionany sale of Shares, did or will comply comply, in all material respects respects, with all applicable provisions the requirements of the Act and will contain all statements required to be stated therein in accordance with Act; the Act. The Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet conditions to the Prospectus, as use 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed Form “S-3ASR” in connection with the offering and sale of the SharesShares as contemplated hereby have been satisfied; the Registration Statement meets, and the Company will have complied or will comply with offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 111 415 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in (including, without limitation, Rule 415(a)(5)); the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale did not, as of the Shares other than the Registration Statementlatest Effective Time, the Prospectus or any other materials, if any,permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, 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 required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; and the each Pre-Pricing Prospectus delivered to the Underwriter for use in connection with the offering of the Shares willcomplied, 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) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they were, or hereafter are, it was filed with the Commission, complied and will comply complies as of the date hereof, in all material respects with the requirements of the Exchange Act, and, when read together ; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with other information in the Commission and incorporated by reference in the Prospectus, ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with the Registration Statement became effectivePricing Information, and as of the Closing Date, or during the period specified in Section 5(b) did not and will 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 light of the circumstances under which they were made, not misleading. The foregoing representations , and warranties at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, include an untrue statement of a material fact or omit to state a material fact necessary in this Section 6(d) do order to make the statements therein, in the light of the circumstances under which they were made, not apply to any statements misleading; each Basic Prospectus complied or omissions made in reliance 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 and in conformity with information relating or prior to the Underwriter furnished in writing to date hereof) and, at the Company time of purchase, each additional time of purchase, if any, and at all times during which a prospectus is required by the Underwriter specifically for inclusion in Act to be delivered (whether physically or through compliance with Rule 172 under the Registration Statement or Prospectus Act or any amendment or supplement thereto.
(esimilar rule) The historical financial statements and the related notes theretoin connection with any sale of Shares, included or incorporated by reference in the Registration Statement and the Prospectuswill comply, comply in all material respects respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Basic Prospectus and the date such Basic Prospectus was filed with the Commission and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, together with the Pricing Information, 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 at no time during such period did or will any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, and the Pricing Information, 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; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, 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, in all material respects, with the requirements of the Act (in the case of the Prospectus, 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 Supplement and the date the Prospectus Supplement 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 or will any Prospectus Supplement or the Prospectus, as then amended or 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; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will 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 or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with the Underwriter Information (as defined in Section 10 hereof); 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 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;
(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 Pre-Pricing Prospectus and the Permitted Free Writing Prospectus, 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 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, as applicablefiled with the Commission), the sending or giving, by any Underwriter, 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 present fairly the consolidated financial position registration statement relating to the offering of the Transaction Entities 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 the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and their consolidated subsidiaries 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 was not and is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Act with respect to the Properties offering of the 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 ProspectusAct) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity offering of the Shares or (3) adversely affect contemplated hereby is solely the consummation of any property of the transactions contemplated by this Agreement Company;
(each of (1), (2d) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each all of the subsidiaries of the Transaction Entities is defined on Schedule I hereto issued and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock stock, including the Common Stock, of each subsidiary the Company have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed non-assessable, have been issued in Schedule I heretocompliance with all federal and state securities laws and were not issued in violation of any preemptive right, all resale right, right of first refusal or similar right and no further approval or authority of the outstanding shares Company’s stockholders or the Company’s Board of capital stock membership interests or all partnership interests Directors is required for the issuance and sale of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.Shares;
(he) The (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein; and (ii) the Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with full limited partnership power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any, and to execute and deliver this Agreement and to perform its obligations as contemplated herein;
(f) (i) the Company is duly qualified to do business as a foreign limited partnership corporation and is in good standing in each jurisdiction in which its where the ownership or lease leasing of property its properties or the conduct of its business requires such qualification (qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, condition (financial or otherwise), results of operations or prospects of the Transaction Entities and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material Adverse Effect”); and (ii) the Operating Partnership is duly qualified to do business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not have a Material Adverse Effect on Effect;
(g) the earnings, assets Transaction Entities have provided you complete and correct copies of the articles of incorporation and the bylaws (or business affairs comparable organizational documents) of the Transaction Entities and their subsidiaries considered (as defined under the Exchange Act) (each, a single enterprise)“Subsidiary” and collectively, the “Subsidiaries”) and has all partnership power amendments thereto have been delivered to you and, except as set forth in the Registration Statement or any Incorporated Document, no changes therein will be made on or after the date hereof through and authority necessary to own or hold its propertiesincluding the time of purchase or, to conduct if later, any additional time of purchase; 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 Company, through two wholly-owned Subsidiaries, owned approximately 94.2% of the Operating Partnership. The Agreement outstanding units of Limited Partnership of partnership interest in the Operating Partnership (“OP Units”) as of December 31, 2020; each of the "Operating Partnership Agreement"“significant subsidiaries” of the Company as defined in Rule 405 of the Securities Act and ESS Holdings Business Trust I (each, a “Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing as a corporation, limited liability company, limited partnership or trust, as applicable, in good standing under the laws of the jurisdiction of its organization, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any; each Subsidiary is duly qualified to do business as a foreign corporation, limited liability company, limited partnership or trust, as applicable, and is in full force good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and effectin good standing would not, and individually or in the aggregate percentage interests aggregate, have a Material Adverse Effect; each of the Company and the limited partners Operating Partnership has no “significant subsidiary,” other than as set forth in Annex A hereto; all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, as applicable, and, with respect to such securities, are owned directly or indirectly by the Company or the Operating Partnership subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as set forth on Schedule I.provided herein, will be duly and validly issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) This the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and the certificates for the 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 holders;
(j) this Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.;
(k) Neither neither the Transaction Entities Company, the Operating Partnership nor any of their subsidiaries is, the Subsidiaries is in breach or with the giving of notice or lapse of time or both would be, in violation of or in default under (1nor has any event occurred which with notice, lapse of time or both would result in any breach 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) (i) its Declaration of Trustrespective charter, articles of incorporationbylaws, certificate of incorporation; limited liability company agreement, partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement)organizational document, (2) its Bylaws (as amended to the date of this Agreement) or (3ii) any indenture, mortgage, deed of trust, bank loan agreementor credit agreement or other evidence of indebtedness, partnership agreement or any license, lease, contract or other agreement or instrument or obligation to which such Transaction Entity the Company, the Operating Partnership or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries Subsidiaries is a party or by which any of the Transaction Entities them or any of its subsidiaries is their properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, or (iv) any judgment or order applicable to which the Operating Partnership, the Company or any of the property or assets of the Transaction Entities Subsidiaries or any of its subsidiaries is subjecttheir respective properties except, except for such conflicts, breaches, defaults or violations which individually or in the aggregate case of (ii), (iii) and (iv), as would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Actexecution, (y) as may be required under state securities or Blue Sky laws or Sections 2710 delivery and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trperfor
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the Underwriter as of the date hereof you and the Closing Date thatUnderwriters as follows:
(a) The Registration Statement became effective A registration statement on November 13, 1997Form S-3 (File No. No stop order suspending the effectiveness 333-36577) with respect to debt securities to be offered from time to time in accordance with Rule 415 of the Registration Statement rules and regulations of were filed with the Commission on or any part thereof has been issued and no proceeding for that purpose has been instituted or, prior to the knowledge date of the Transaction Entities, threatened by the Commission this Underwriting Agreement have been delivered or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued made available to you and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdictionyour counsel.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as Each part of the date hereof and at the time the Registration Statement Statement, when such part became or becomes effective, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or Prospectus and any amendment or supplement to the Prospectus is filed with the Commission, did or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 such Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did or will comply in all material respects with all applicable provisions of the Act and will 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 hereofsuch Prospectus, on the date of filing of any Rule 462(b) Registration Statement thereof with the Commission and on at the Closing Date, no part Date (as hereinafter defined) conformed or will conform in all material respects with the requirements 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 1933 Act and the statements therein not misleading. On 1933 Act Rules and Regulations; the date the Registration Statement was declared effective, on the date hereof, as of its dateIndenture, on the date of filing of any Rule 462(b) Registration Statement thereof with the Commission and at the Closing Date, the Prospectus and the Prospectus Supplement did not Date conformed or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, complied or will comply when so filed conform in all material respects with all applicable provisions the requirements of the ActTrust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the "TIA"); each part of the Registration Statement, when such part became or becomes effective 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, in the light of the circumstances under which they were made, therein not misleading; and the Prospectus delivered to and any amendment or supplement thereto, on the Underwriter for use in connection with the offering date of the Shares will, at the time of such delivery, be identical to the electronically transmitted copies filing thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, and 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) Date did not and or will not include 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. The ; except that the foregoing representations and warranties in this Section 6(d) do shall not apply to any (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification under the TIA (the "Form T-1") and (ii) statements in, or omissions made from, any such document in reliance on upon, and in conformity with with, information relating concerning the Underwriters that was furnished to the Underwriter furnished in writing to the Company Transaction Entities by the Underwriter Underwriters specifically for inclusion use in the preparation thereof.
(c) The documents incorporated by reference in the Registration Statement or Statement, the Prospectus or and any amendment or supplement theretoto such Registration Statement or such Prospectus, when they became or become effective under the 1933 Act or were or are filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be, conformed or will conform in all material respects with the requirements of the 1933 Act, the 1933 Act Rules and Regulations, the Exchange Act and the rules and regulations of the Commission thereunder (the "Exchange Act Rules and Regulations"), as applicable.
(ed) The historical financial statements and of the related notes thereto, included Operating Partnership set forth or incorporated by reference in the Registration Statement and Prospectus fairly present the Prospectus, comply in all material respects with the requirements financial condition of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries Operating Partnership as of the dates indicated and the results of their operations and the changes in their cash flows financial position for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared therein specified in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trprinciples
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the Underwriter as of the date hereof you and the Closing Date that:Underwriters as follows: 2
(a) The Registration Statement became effective Operating Partnership has filed with the Securities and Exchange Commission (the "Commission") a registration statement on November 13Form S-3 (File No. 333-36577) for the registration of debt securities under the Securities Act of 1933, 1997. No stop order suspending as amended (the effectiveness "1933 Act"), and the offering thereof from time to time in accordance with Rule 415 of the Registration Statement or any part thereof rules and regulations of the Commission thereunder (the "1933 Act Rules and Regulations"). Such registration statement has been issued declared effective by the Commission. Such registration statement and no proceeding for that purpose the prospectus constituting a part thereof, as from time to time amended or supplemented by the filing of documents pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the 1933 Act or otherwise, is referred to herein as the "Registration Statement." A prospectus supplement (the "Prospectus Supplement") setting forth the terms of the offer and sale of the Securities contemplated by this Agreement, and additional information concerning the Company and its business has been instituted or, or will be prepared and will be filed by the Company pursuant to the knowledge Rule 424(b) of the Transaction Entities1933 Act Rules and Regulations, threatened on or before the second business day after it is first used in connection with the offer and sale of Securities under this Agreement (or such earlier time as may be required by the Commission or 1933 Act Rules and Regulations). The final form of prospectus included in the Registration Statement, as supplemented by the state securities authority Prospectus Supplement, is referred to herein as the "Prospectus," except that if any revised prospectus, whether or not such revised prospectus is required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act Rules and Regulations, shall be provided to you by the Company for use in connection with the offer and sale of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued Securities under this Agreement, the term "Prospectus" shall refer to such revised prospectus from and no proceeding after the time such documents are first provided to you for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdictionsuch use.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as Each part of the date hereof and at the time the Registration Statement Statement, when such part became or becomes effective, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or Prospectus and any amendment or supplement to the Prospectus is filed with the Commission, did or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 such Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did or will comply in all material respects with all applicable provisions of the Act and will 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 hereofsuch Prospectus, on the date of filing of any Rule 462(b) Registration Statement thereof with the Commission and on at the Closing Date, no part Date (as hereinafter defined) conformed or will conform in all material respects with the requirements 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 1933 Act and the statements therein not misleading. On 1933 Act Rules and Regulations; the date the Registration Statement was declared effective, on the date hereof, as of its dateIndenture, on the date of filing of any Rule 462(b) Registration Statement thereof with the Commission and at the Closing Date, the Prospectus and the Prospectus Supplement did not Date conformed or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, complied or will comply when so filed conform in all material respects with all applicable provisions the requirements of the ActTrust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the "TIA"); each part of the Registration Statement, when such part became or becomes effective 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, in the light of the circumstances under which they were made, therein not misleading; and the Prospectus delivered to the Underwriter for use in connection with the offering of the Shares willand any amendment or supplement thereto, 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.on the
(dc) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Prospectus pursuant and any amendment or supplement to Item 12 of Form S-3 such Registration Statement or such Prospectus, when they became or become effective under the Act, at the time they were, 1933 Act or hereafter are, were or are filed with the CommissionCommission under the Exchange Act, complied and as the case may be, conformed or will comply conform in all material respects with the requirements of the Exchange 1933 Act, andthe 1933 Act Rules and Regulations, when read together with other information in the Exchange Act and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, rules and as regulations of the Closing DateCommission thereunder (the "Exchange Act Rules and Regulations"), or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement theretoas applicable.
(ed) The historical financial statements and of the related notes thereto, included Operating Partnership set forth or incorporated by reference in the Registration Statement and Prospectus fairly present the Prospectus, comply in all material respects with the requirements financial condition of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries Operating Partnership as of the dates indicated and the results of their operations and the changes in their cash flows financial position for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared therein specified in conformity with generally accepted accounting principles consistently applied on a consistent basis, and through the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be periods involved (except as otherwise stated therein; the ). The summary financial, pro forma financial information, and the related notes thereto, statistical data included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a basis consistent with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to financial statements presented therein; and the . No other financial and statistical information and data statements are required to be set forth in the Registration Statement and or the Prospectus under the 1933 Act or the 1933 Act Rules and Regulations.
(e) The only subsidiaries (as defined in the 1933 Act Rules and Regulations) of the Transaction Entities are accurately presented in all material respects and prepared the subsidiaries listed on a basis consistent with Schedule C hereto (the books and records "Subsidiaries"). Each of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any each of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company Subsidiaries has been duly formed and is validly existing incorporated or formed, as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectuscase may be, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly an existing as a corporation, limited liability company corporation or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company incorporation or partnership power and authorityformation, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws . Each 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the TrTransaction
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities jointly and severally represents and warrants to the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13February 28, 1997. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, 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 or will comply in all material respects with all applicable provisions of the 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 in the Prospectus or incorporated therein by reference, 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 or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 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; and the Prospectus delivered to the Underwriter for use in connection with the offering of the Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇EDGAR, except to the extent permitted by permit▇▇▇ ▇y Regulation S-T.T
(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, 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, and, when read together with other information in and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, or during the period specified in Section 5(b) did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to [the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiariesEntities], together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiariestheir, taken as a whole.
(g) The Company has been duly formed incorporated and is validly existing as a real estate investment trust corporation in good standing under the laws of the state State of Maryland, with trust corporate power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) materially adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except . Except for investments in subsidiaries (including any joint ventures)their subsidiaries, in short-term investment securities and in other securities as described in the Registration Statement or Prospectus Prospectus, the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries whose operations are consolidated with those of the Company for financial reporting purposes (the "Subsidiaries") of the Transaction Entities is defined on Schedule SCHEDULE I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general trust or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company trust or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company corporation or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule SCHEDULE I hereto, all the outstanding shares of capital stock membership interests or and all partnership interests of each subsidiary Subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of DelawareNew York, 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 Transaction Entities and their subsidiaries considered as a single enterprise)Effect, and has all partnership power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement. The Company General Partner is the sole general partner of the Operating Partnership. The Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership Partnership, as amended (the "Operating Partnership Agreement") is in full force and effect, and the aggregate percentage interests of the Company and the limited partners its qualified REIT subsidiary, Home Properties Trust, a Maryland real estate trust, in the Operating Partnership are as set forth on Schedule I.in the Prospectus.
(i) [Intentionally omitted]
(j) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(jk) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest capital stock of the Company conform conforms to the description thereof in the Registration Statement and the Prospectus.
(kl) Neither the Transaction Entities nor any of their subsidiaries Subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration Articles of TrustIncorporation, articles Certificate of incorporationIncorporation or partnership agreement, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) ), if any, or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries Subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries Subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries Subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or any other law, rule or regulation applicable to the Underwriter, or (z) the failure to obtain which would not have a Material Adverse Effect.
(lm) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries Subsidiaries is or may be a party or to which any property Properties of any of the Transaction Entities or their subsidiaries Subsidiaries is or may be the subject which, if determined adversely to the TrTransaction Entities, could individually or in the aggregate reasonably be expected to have a Material Adverse Effect; th
Appears in 1 contract
Sources: Underwriting Agreement (Home Properties of New York Inc)
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the Underwriter as of the date hereof you and the Closing Date thatUnderwriters as follows:
(a) The Registration Statement became A registration statement on Form S-3 (File No. 333-36577) with respect to the Securities being offered by the Operating Partnership, including a prospectus, has been prepared by the Transaction Entities in conformity with the requirements of the Securities Act of 1933, as amended (the "1933 Act"), and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder (the "1933 Act Rules and Regulations"), 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 on November 13, 1997date of such registration statement has been declared effective. No stop order suspending the effectiveness of the Registration Statement or any part thereof registration statement has been issued issued, and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, or threatened by the Commission or Commission. A prospectus supplement (the "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Securities being offered by the state securities authority Operating Partnership and additional information concerning the Operating Partnership 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 have been delivered or made available to you and your counsel. Such 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, 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, Prospectus or any preliminary prospectus shall be deemed to refer to and include the filing after the execution hereof of any jurisdictiondocument with the Commission deemed to be incorporated by reference therein. No order preventing For purposes of this Underwriting Agreement, all references to the Registration Statement, the Prospectus, any preliminary prospectus or suspending 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 to any Prospectus delivered to you for use in connection with the offering of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened Securities by the Commission or by the state securities authority of any jurisdictionOperating Partnership.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effectiveeffective and at each time thereafter at which an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K was filed by either of the Transaction Entities with the Commission, complied, and when as of each applicable Representation Date (as herein defined) will comply, in all material respects with the requirements of the 1933 Act and the 1933 Act Rules and Regulations; the Indenture, 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 Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the "TIA"); the Registration Statement, at the time it became effective and at each time thereafter at which a Quarterly Report on Form 10-Q or a Current Report on Form 8-K was filed by either of the Transaction Entities with the Commission, did not, and at each time thereafter at which any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment Annual Report on Form 10-K, Quarterly Report on Form 10-Q or supplement to the Prospectus Current Report on Form 8-K is filed by either of the Transaction Entities with the Commission, did or will comply in all material respects with all applicable provisions of the Act Commission 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 in the Prospectus or incorporated therein by reference, 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 each Representation 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 Commissionwill not, did or will comply in all material respects with all applicable provisions of the Act and will 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. 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 and the Prospectus Supplement did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have 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 (which were disclosed to the Underwriter and Underwriter's counsel).
(c) 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 required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, as of the date hereof, does not, and as of each Representation Date will 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 (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification under the TIA (the "Form T- 1") and (ii) statements in or omissions from the Registration Statement or Prospectus delivered relating to you and made in reliance upon and in conformity with information furnished to the Underwriter Transaction Entities in writing by you expressly for use in connection with the offering of the 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.Registration Statement or Prospectus.
(dc) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under Registration Statement and the ActProspectus, at the time they were, were or hereafter are, are filed with the Commission, complied and will comply comply, as the case may be, in all material respects with the requirements of the Securities and Exchange Act of 1934 (the "1934 Act") and the rules and regulations of the Commission thereunder (the "1934 Act Rules and Regulations"), and, when read together with the other information in the Registration Statement and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, and as of the Closing Date, each Representation Date or during the period specified in Section 5(b4(c) hereof, did not and will not include 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. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; the financial statements with respect to the Properties (as defined in the Prospectus) acquired by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the state of Maryland, with trust power and authority to own or lease its properties and to conduct its business as described in the Prospectus, and is duly qualified as a foreign trust for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not (1) have a material adverse effect on the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3) adversely affect the consummation of any of the transactions contemplated by this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as described in the Registration Statement or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims.
(h) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, 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 Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, 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 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 and the limited partners in the Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (in each case as amended to the date of this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or in the aggregate would not have a Material Adverse Effect; the issue and sale of the Shares and the performance by each of the Transaction Entities of all of the obligations under this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or in the aggregate would not have a Material Adverse Effect, nor will any such action result in any violation of the provisions of the Articles of Incorporation or the ByLaws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Trto
Appears in 1 contract
Representations and Warranties of the Transaction Entities. Each of the Transaction Entities Entities, jointly and severally severally, represents and warrants to the Underwriter as and agrees with each of the date hereof and the Closing Date Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act. Each of the Registration Statement became and any post-effective on November 13, 1997. No amendment has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transaction Entities, threatened by the Commission post-effective amendment or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Preliminary Prospectus has been issued and or the Prospectus is in effect; to the Company’s knowledge no proceeding proceedings for that such purpose has have been instituted or, to the knowledge of the Transaction Entities, or are pending before or threatened by the Commission or Commission; and the Company has complied with any request made by the state securities authority Commission for additional or supplemental information. The date of any jurisdiction.
(b) The this Agreement is not more than three years subsequent to the initial effective date of the Base Registration Statement. At the respective times the Base Registration Statement and the Prospectusany amendment, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference and, if applicable, any Term Sheet at each deemed effective date with respect to the ProspectusUnderwriters and the Shares pursuant to Rule 430B(f)(2), as of the date hereof and at the time Closing Date, the Registration Statement became effectivecomplied, complies 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 or will comply in all material respects with all applicable provisions the requirements of the Securities Act and the rules and regulations thereunder and did not and will not contain all statements an untrue statement of a material fact or omit to state a material fact required to be stated therein in accordance with or necessary to make the Act. statements therein not misleading.
(b) The Preliminary Prospectus, including the financial statements, schedules and related notes included in the Prospectus or incorporated therein by reference, and if applicable, any Term Sheet to the Prospectus, when filed 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 or will comply in all material respects with all applicable provisions of the Act and will 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 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 and 430B under the Securities Act). The Preliminary Prospectus, the Prospectus and any amendment or supplement thereto (including any prospectus wrapper) prepared in connection with the offering and sale of the Shares, at their respective issue dates, at the Closing Date and at each Option Closing Date, if any, complied and will comply, as applicable, in all material respects with any applicable laws or regulations of foreign jurisdictions in which such Preliminary Prospectus, the Prospectus or such amendment or supplement, as the case may be, are distributed in connection with such offering and sale.
(i) The Registration Statement and any amendment thereto did not contain and, as amended or supplemented, if applicable, will not contain an 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. On the date ; (ii) the Registration Statement was declared effective, on the date hereofcomplies and, as of its dateamended 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 begins on the date of filing the Preliminary Prospectus and the date on which the Preliminary Prospectus was filed with the Commission and ends immediately prior to the execution of this Agreement did the Preliminary Prospectus contain any Rule 462(buntrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iv) Registration Statement 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, 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vi) each Permitted Free Writing Prospectus, if any, does not conflict with the information contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus, including any document incorporated, or deemed to be incorporated, therein by reference, and was accompanied or preceded by the 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) the Prospectus Supplement did not or (including any Prospectus wrapper), as of the date it is filed with the Commission pursuant to Rule 424(b), at the Closing Date and at each Option Closing Date, 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 will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with ; provided, however, that 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 set forth in this Section 6(b1(c) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Transaction Entities have not distributed any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Time of Sale Prospectus, any Preliminary Prospectus, any Permitted Free Writing Prospectus, any road show or the Prospectus (including any Prospectus wrapper) or any other materialsamendments or supplements thereto based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, if any,permitted it being agreed that the only information furnished by the Act (which were disclosed Underwriters to the Company expressly for use therein are the name of each Underwriter and Underwriter's counselthe number of Shares each Underwriter has agreed to purchase as set forth in the table following the first paragraph, the first paragraph under the heading “Commissions and Discounts” and the second, third and fourth paragraphs under the heading “Price Stabilization, Short Positions and Penalty Bids” of the “Underwriting” section of the Time of Sale Prospectus and the Prospectus (collectively, the “Underwriter Information”).
(c) Each 462(b) . The documents incorporated or deemed to be incorporated by reference in the Registration Statement, if anythe Preliminary Prospectus or the Prospectus, complied when they became effective or at the time they were or hereafter are filed with the Commission, complied, comply and will comply when so filed in all material respects with all applicable provisions the requirements of the Act; Exchange Act and the rules and regulations of the Commission thereunder and, when read together with the other information in the Registration Statement, the Preliminary Prospectus or the Prospectus, (a) at the time the Base Registration Statement originally became effective, (b) at the earlier of the time the Prospectus was first used and the Time of Sale and (c) at the Closing Date and at each Option Closing Date, did not or and will not contain 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, in the light of the circumstances under which they were made, not misleading; and the Prospectus delivered .
(d) Prior to the Underwriter for use execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the 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 offering or sale of the Shares willShares, at in each case other than the time Preliminary Prospectus and 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 such deliverythe Representatives, be identical other than the Permitted Free Writing Prospectuses and road shows furnished or presented to the electronically transmitted copies thereof Representatives before first use. Each Permitted Free Writing Prospectus, if any, 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 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 ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(dRule 433(d) The documents incorporated or deemed to be incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act, at the time they were, or hereafter are, filed with the Commission), complied the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on 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 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 offering 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 Exchange 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; and, when read together with other information in and incorporated by reference in to the Prospectus, at the time the Registration Statement became effective, and as knowledge of the Closing DateTransaction Entities, no free writing prospectus prepared by or during on behalf of or used by any Underwriter contains any “issuer information” within the period specified in Section 5(bmeaning of Rule 433(h)(2) did not and will not include an untrue statement of a material fact or omit to state a material fact necessary to make under the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement theretoSecurities Act.
(e) The historical financial statements and Company was not an “ineligible issuer” (as defined in Rule 405 under the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus, comply in all material respects with the requirements of the Act and the Exchange Securities Act, as applicable, and present fairly the consolidated financial position of the Transaction Entities and their consolidated subsidiaries ) as of the dates indicated eligibility determination date for purposes of Rules 164 and 433 under the results of their operations and the changes in their cash flows for the periods specified; the financial statements Securities Act with respect to the Properties (as defined in offering of the Prospectus) acquired Shares contemplated by the Transaction Entities and their consolidated subsidiaries, together with related notes, incorporated by reference in the Registration Statement or the Prospectus, present fairly a summary of gross income and direct operating expenses or a summary of gross income, as the case may be, of such Properties for the indicated periods; the foregoing financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; the pro forma financial information, and the related notes thereto, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable; the assumptions used in preparing such pro forma information are reasonable and the adjustments used therein are appropriate to give effect to the transactions referred to therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus are accurately presented in all material respects and prepared on a basis consistent with the books and records of the Transaction Entities and their consolidated subsidiariesStatement.
(f) Since At the respective dates Closing Date, the Shares will have been authorized for listing on the New York Stock Exchange (“NYSE”), subject only to official notice of issuance. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or the listing of the Common Stock (including the Shares) on the NYSE, nor has the Company received any notification that the Commission or the NYSE is contemplating terminating such registration or listing. To the knowledge of the Transaction Entities, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority (“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 the Registration Statement was initially filed with the Commission, except as of which information is given has been disclosed in the Registration Statement (excluding the exhibits thereto), the Time of Sale Prospectus and the Prospectus, (i) there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Transaction Entities and their subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and (ii) except as set forth or contemplated in the Prospectus, neither the Transaction Entities nor any of their subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) material to the Transaction Entities and their subsidiaries, taken as a whole.
(g) The Company has been duly formed and incorporated, is validly existing as a real estate investment trust in good standing under the laws of the state State of Maryland and is in good standing with the State Department of Assessments and Taxation of Maryland, with trust has the corporate power and authority to own or lease and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the ProspectusRegistration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified as a foreign trust for the transaction of to transact business and is in good standing under the laws of in each other jurisdiction in which it owns the conduct of its business or leases properties, its ownership or conducts any business, so as to require leasing of property requires such qualification, other than where except to the extent that the failure to be so qualified or be in good standing would not (1i) have a material adverse effect on the assets, business, condition (financial or otherwise), business, prospectsearnings, properties, net worth or management, results of operations or prospects of the Transaction Entities and their subsidiariesthe Subsidiaries, taken as a whole, (2) adversely affect the issuance or validity of the Shares or (3ii) adversely affect the prevent or materially interfere with consummation of any of the transactions contemplated by this Agreement hereby (each the occurrence of (1)any such effect, (2) and (3) aboveprevention, a "Material Adverse Effect"); except for investments in subsidiaries (including any joint ventures), in short-term investment securities and in other securities as interference or result described in the Registration Statement foregoing clauses (i) or Prospectus the Company has no direct or indirect equity or other interest in any corporation, partnership, trust or other entity; each of the subsidiaries of the Transaction Entities is defined on Schedule I hereto and has been duly organized and is validly existing (ii) being herein referred to as a corporation, limited liability company or general or limited partnership, as the case may be, in good standing under the laws of its jurisdiction of organization with corporate, limited liability company or partnership power and authority, as the case may be, to own or lease its properties and conduct its business as presently conducted and as described in the Prospectus, and has been duly qualified as a foreign corporation, foreign limited liability company or foreign general or limited partnership, as the case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect; all the outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; except as disclosed in Schedule I hereto, all the outstanding shares of capital stock membership interests or all partnership interests of each subsidiary are owned by the Transaction Entities, directly or indirectly, free and clear of all liens, encumbrances, security interests and claims“material adverse effect”).
(h) The Operating Partnership has been duly formed and organized, is validly existing as a limited partnership in good standing under the laws of the State Commonwealth of DelawareVirginia, has the full limited partnership power and authority to own or lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to do transact business as a foreign limited partnership and is in good standing 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 where to the extent that the failure to be so qualified or be in good standing would not not, individually or in the aggregate, have a Material Adverse Effect on the earnings, assets or business affairs of the Transaction Entities and their subsidiaries considered as a single enterprise), and has all partnership power and authority necessary to own or hold its properties, to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreementmaterial adverse effect. The Company is the sole general partner of the Operating Partnership. The At the Closing Date, the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (as amended, the "“Operating Partnership Agreement") is ”), in the form filed or incorporated by reference as an exhibit to the Registration Statement, will be in full force and effect, and the aggregate percentage interests of the Company and the limited partners in the Operating Partnership are will be as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and delivered to the Underwriter against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. Application has been made to list the Shares on the NYSE. The form of certificate for the Shares will comply with all applicable legal and NYSE requirements. The holders of outstanding shares of beneficial interest of the Company are not entitled to preemptive or other rights to subscribe for the Shares. The shares of beneficial interest of the Company conform to the description thereof in the Registration Statement and the Prospectus, assuming no exercise of the Underwriter’s option to purchase the Additional Shares. Additionally, to the extent any portion of such option to purchase additional shares is exercised subsequent to the Closing Date, the Company will contribute the net proceeds from the sale of the Additional Shares to the Operating Partnership in exchange for a number of common units of limited partnership interest in the Operating Partnership (the “OP Units”) equal to the number of Additional Shares issued. The Company will own all of its outstanding OP Units free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(ki) Neither Each Subsidiary has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the Transaction Entities nor any laws of their subsidiaries isthe jurisdiction of its organization, has the power and authority to own or with the giving of notice or lapse of time or both would belease, in violation of or in default under (1) its Declaration of Trust, articles of incorporation, certificate of incorporation; partnership agreement or other charter document as the case may be (be, its property and to operate its property and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each case as amended jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the date of this Agreement), (2) its Bylaws (as amended extent that the failure to the date of this Agreement) be so qualified or (3) any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other agreement or instrument or obligation to which such Transaction Entity or any of it subsidiaries is a party or by which it or any of its properties is bound, except, with respect to clauses (2) and (3), for violations and defaults which individually or be in the aggregate good standing would not have a Material Adverse Effectmaterial adverse effect; except as otherwise disclosed in the issue and sale Time of the Shares Sale Prospectus and the performance by each of the Transaction Entities of Prospectus, all of the obligations under this Agreement issued shares of capital stock, units of limited partnership interest and units of membership interest of each Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, are owned or will be owned directly or indirectly by the consummation Operating Partnership, free and clear of the transactions herein contemplated will not conflict with all security interests, liens, mortgages, encumbrances, pledges, equities, claims, restrictions or result in a breach other defects of any of the terms or provisions ofkind (collectively, or constitute a default under“Liens”), any indenture, mortgage, deed of trust, loan agreement, partnership agreement or other material agreement or instrument to which any of the Transaction Entities or any of its subsidiaries is a party or by which any of the Transaction Entities or of its subsidiaries is bound or to which any of the property or assets of the Transaction Entities or any of its subsidiaries is subject, except for such conflicts, breaches, defaults or violations which individually or have been issued in the aggregate would compliance with applicable securities laws and were not have a Material Adverse Effect, nor will any such action result issued in any violation of any preemptive or similar rights. On the provisions of Closing Date, the Articles of Incorporation or Operating Partnership will be the ByLaws only subsidiary of the Company or any applicable law or statute or any order, rule or regulation that meets the definition of any court or governmental agency or body having jurisdiction over any of the Transaction Entities or any of their properties, except for such violations which individually or in the aggregate would not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Transaction Entities of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, orders, registrations or qualifications (x) as have been obtained under the Act and the Exchange Act, (y) as may be required under state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct Rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriter or (z) the failure to obtain which would not have a Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of any of the Transaction Entities, threatened to which any of the Transaction Entities or their subsidiaries is or may be a party or to which any property of any of the Transaction Entities or their subsidiaries is or may be the subject which, if determined adversely to the Tr“significant subs
Appears in 1 contract
Sources: Underwriting Agreement (Armada Hoffler Properties, Inc.)