Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agents that as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement. (a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof). (b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable. (c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information. (d) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus. (e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq. (f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”). (g) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. (h) Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X). (i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights. (j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.” (k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding. (l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act. (m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and Each of the Operating PartnershipTransaction Entities, jointly and severally, represent represents and warrant warrants to each of the Agents that Underwriter as of the date hereof, as of each Representation the Firm Shares Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Option Shares pursuant to this Agreement.Closing Date (if any), as follows:
(a) No order preventing or suspending On the use of Effective Date, the Prospectus has been issued by the CommissionRegistration Statement complied, and on the date of the Prospectus, as of its date and as of the date of any post-effective amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under becomes effective, the date any supplement or amendment to the Prospectus is filed with the Commission and each Closing Date, the Registration Statement, the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the requirements of the Securities Act and no order suspending the effectiveness Rules and the Exchange Act and the rules and regulations of the Commission thereunder. At the Effective Date, at the date hereof and at the Closing Date, the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . Each of (i) the General Disclosure Package (as defined below) as of the date Applicable Time and at the Closing Date and on each Option Closing Date, (ii) any electronic road show or investor presentation (including without limitation any “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act) delivered to and approved by the Underwriters for use in connection with the marketing of the Prospectus and any amendment or supplement theretoOffering (collectively, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light “Marketing Materials”) as of the circumstances under which they were madetime of their use and at the Closing Date and on each Option Closing Date, not misleading; provided, however, that the Company makes no representation if any and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and (iii)) the Prospectus, as amended or supplemented, as of its date, at the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus filing pursuant to Section 2(a)(10)(aRule 424(b) of the Securities Act or Rule 134 under the Securities Act or (ii) and at the Closing Date and on each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)Option Closing Date, and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusif any, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided. Notwithstanding the foregoing, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined in Rule 405) as none of the eligibility determination date for purposes of Rules 164 representations and 433 under warranties set forth above in this paragraph 2(a) shall apply to statements in, or omissions from, the Securities Act with respect to Registration Statement, any Preliminary Prospectus or the offering Prospectus made in reliance upon, and in conformity with, information herein or otherwise furnished in writing by the Representative on behalf of the Placement Shares contemplated by several Underwriters specifically for use in the Registration Statement and Statement, any Preliminary Prospectus or the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be. With respect to the preceding sentence, its properties and to operate its properties and conduct its business as described the Company acknowledges that the only information furnished in writing by the Representative on behalf of the several Underwriters for use in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus: (i) the second paragraph under the heading “Commissions and Expenses” and (ii) the first and third paragraphs under the heading “Price Stabilization, Short Positions and Penalty Bids” (collectively, the “Underwriter Information”). Each preliminary prospectus delivered to the Underwriters for use in connection with the Offering and the Prospectus and is duly qualified was or will be identical to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationelectronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(g) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of permitted by Regulation S-X).
(i) This Agreement has been duly authorized, executed T. As used in this Section and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for elsewhere in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.:
Appears in 1 contract
Samples: Underwriting Agreement (Medalist Diversified REIT, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agents that Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the The Company and the Operating Partnership make no representation meet the requirements for use of Form S-3, and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)the Registration Statement has been declared effective by the Commission.
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under and the Securities Act Prospectus, including the financial statements, schedules and no order suspending related notes included in the effectiveness of the Registration Statement has been issued by the CommissionProspectus and, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related if applicable, any Term Sheet to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus, as of the date hereofhereof and at the time the Registration Statement became effective, and when any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to Rule 430B(f)(2) and at each Settlement Datethe Prospectus is filed with the Commission, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus and, if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will con- tain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriters and Underwriters' counsel).
(c) Each Rule 462(b) Registration Statement, if any, will comply when so filed in all material respects with all applicable provisions of the Act and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedand the Prospectus delivered to the Underwriters for use in connection with the offering of Shares will, howeverat the time of such delivery, that be identical to the Company makes no representation and warranty electronically transmitted copies thereof filed with respect the Commission pursuant to any Agent Information. XXXXX, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and did notincorporated by reference in the Prospectus, does not and will not include any information that conflicted, conflicts or will conflict with at the information contained in time the Registration Statement or became effective, as of the date of the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with and as of the Prospectus accompanyingClosing Date, or delivered prior to delivery of, such Issuer Free Writing Prospectusduring the period specified in Section 5(c), did not and will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements state- ments therein, in the light of the circumstances under which they were made, not misleading; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined Underwriters specifically for inclusion in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectusor Prospectus or any amendment or supplement thereto.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(g) Maryland. The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the Delaware Uniform Limited Partnership Act. Each of First Industrial Financing Partnership, L.P. (the "Financing Partnership"), First Industrial Securities, L.P. ("Securities, L.P."), First Industrial Mortgage Partnership, L.P. (the "Mortgage Partnership"), First Industrial Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services L.P. ("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are referred to collectively herein as the "Partnership Subsidiaries") has been duly organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. FR Development Services, L.L.C. ("FRDS") has been duly organized and is validly existing as a limited liability corporation in good standing under and by virtue of the State laws of Marylandits jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR Development Services, Inc. ("FRD"), FR Acquisitions, Inc. ("FRA") and First Industrial Management Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHC, FIDSG and FRA referred to collectively herein as the "Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries") has been duly organized and is validly existing as a corporation in good standing under and by virtue of the laws of its jurisdiction of incorporation. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FIH. FIDSG is a wholly-owned subsidiary of the Company and is the sole general partner of DSG. FRDS is a wholly-owned subsidiary of the Operating Partnership. FRD is a subsidiary controlled by the Operating Partnership. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Company, the Operating Partnership and each of the Subsidiaries has, and at the Closing Date and, if later, at the Option Closing Date will have, full corporate or partnership power and authority to own, and leaseauthority, as the case may be, its to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its properties and conduct its the business in which it engages or proposes to engage as described in the Registration Statement or the Prospectus and the transactions contemplated hereby and thereby. The Company and each of the Registration Statement Corporate Subsidiaries is, and at the Prospectus and is Closing Date and, if later, an Option Closing Date, will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, ex- cept where failure to obtain such qualification or registration will not have a material adverse effect on (1) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, the Company and their Subsidiaries, taken as a whole, or on the 493 in service properties owned, directly or indirectly, by the Company as of September 30, 1997 (the "Properties",) taken as a whole, (2) the issuance, validity or enforceability of the Securities or the enforceability of the Indenture or (3) the consummation of any of the transactions contemplated by this Agreement, any Terms Agreement and/or the Indenture (each a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. The Operating Partnership and each of the Partnership Subsidiaries is, and at the Closing Date and, if later, the Option Closing Date will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualification or be in good standing would registration will not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” , which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Complete and correct copies of the Company, including the Operating Partnership (each a “Subsidiary” articles of incorporation and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated Byby-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement certificate of Limited Partnership limited partnership and agreement of limited partnership of the Operating PartnershipPartnership and the charter documents, as amended through the date hereof (the “Partnership Agreement”), or similar partnership agreements and other organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) Subsidiaries and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to all amendments thereto as have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness been requested by the Company Underwriters or any of their counsel have been delivered to the SubsidiariesUnderwriters or their counsel.
Appears in 1 contract
Samples: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agents that Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the The Company and the Operating Partnership make no representation meet the requirements for use of Form S-3, and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)the Registration Statement has been declared effective by the Commission.
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under and the Securities Act Prospectus, including the financial statements, schedules and no order suspending related notes included in the effectiveness of the Registration Statement has been issued by the CommissionProspectus and, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related if applicable, any Term Sheet to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus, as of the date hereofhereof and at the time the Registration Statement became effective, and when any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to Rule 430B(f)(2) and at each Settlement Datethe Prospectus is filed with the Commission, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Preliminary Prospectus (as hereinafter defined), the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriters and Underwriters' counsel).
(c) Each 462(b) Registration Statement, if any, will comply when so filed in all material respects with all applicable provisions of the Act; will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedand the Prospectus delivered to the Underwriters for use in connection with the offering of Shares will, howeverat the time of such delivery, that be identical to the Company makes no representation and warranty electronically transmitted copies thereof filed with respect the Commission pursuant to any Agent Information. XXXXX, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined Underwriters specifically for inclusion in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectusor Prospectus or any amendment or supplement thereto.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualificationMaryland. Each of the Operating Partnership, except to First Industrial Financing Partnership, L.P. (the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise"Financing Partnership"), earningsFirst Industrial Securities, propertiesL.P. ("Securities, results of operations or prospects of the Company and the Subsidiaries (as hereinafter definedL.P."), taken as a wholeFirst Industrial Mortgage Partnership, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby L.P. (the occurrence of any such effect"Mortgage Partnership"), preventionFirst Industrial Indianapolis, interference or result described in L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P. ("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the foregoing clauses (i) or (ii) being herein Operating Partnership, the Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are referred to collectively herein as a “Material Adverse Effect”).
(gthe "Partnership Subsidiaries") The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"), First Industrial Management Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively herein as the State of Maryland"Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under and by virtue of the laws of its jurisdiction of organization. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIDSG is a wholly-owned subsidiary of the Company and is the sole general partner of DSG. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Company and each of the Subsidiaries has, and at the Closing Date and, if later, an Option Closing Date, will have, full corporate or partnership power and authority to own, and leaseauthority, as the case may be, its to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its properties and conduct its business in which it engages or proposes to engage as described in the Registration Statement or the Prospectus and the transactions contemplated hereby and thereby. The Company and each of the Registration Statement Corporate Subsidiaries is, and at the Prospectus and is Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, except where failure to obtain such qualifications or registration will not have a material adverse effect on (i) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Company and its Subsidiaries, taken as whole or on the 430 in service properties owned, directly or indirectly, by the Company as of March 31, 1997 (the "Properties"), (ii) the issuance, validity or enforceability of the shares or the enforceability of the Deposit Agreement or (iii) the consummation of any of the transactions contemplated by this Agreement and/or the Deposit Agreement (a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Each of the Partnership Subsidiaries is, and at the Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualifications or be in good standing would registration will not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” , which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Complete and correct copies of the Company, including articles of incorporation and of the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the by-laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized charter documents, partnership agreements and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any organizational documents of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, all amendments thereto as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness been requested by the Company Underwriters or any of their counsel have been delivered to the SubsidiariesUnderwriters or their counsel.
Appears in 1 contract
Samples: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to each of the Agents that Underwriter as of the date hereof, as of each Representation Date the Initial Sale Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.Closing Time and agree with the Underwriter, that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the The Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) The Company meets transactions contemplated by this Agreement meet the requirements and comply with the conditions for the use of Form S-3 under the Securities Act; the . The Registration Statement has become effective meets, and the offering and sale of the Shares by the Company as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act and no Act. The Company has not received from the Commission any requests for additional or supplemental information with respect to the Registration Statement. No stop order preventing or suspending use of the Registration Statement, any Preliminary Prospectus or the Prospectus or the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding proceedings for that such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has have been initiated instituted or are pending or, to the knowledge of the Company’s knowledge, are contemplated or threatened by the Commission. , and any request received by the Company on the part of the Commission for additional information with respect thereto has been complied with.
(b) The Preliminary Prospectus when filed and the Registration Statement as of each effective date and as of the date hereof complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Securities Act Regulations.
(c) The Registration Statement, as of its effective date and as of the date hereof, and any post-effective amendment theretodid not, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did does not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of 5:00 pm (Eastern time) on the date of this Agreement (the “Initial Sale Time”) the Disclosure Package did not, and the Prospectus and or any amendment or supplement theretothereto will not, will not as of the applicable filing date, and at the Closing Time, contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation and warranty with respect to any Agent Information. The documents incorporatedstatement contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Underwriter and furnished in writing by or on behalf of the Underwriter to be incorporated, by reference the Company expressly for use therein (that information being limited to that described in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all material respects, with the requirements last sentence of the Exchange Act, or the Securities Act, as applicablefirst paragraph of Section 9(b) hereof).
(cd) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Each Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) Prospectus, if any, as of its issue date and at all subsequent times through the completion of the Securities Act or Rule 134 under public offer and sale of the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the ProspectusStatement, including any document incorporated by reference therein that has not been superseded superceded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationmodified.
(de) The Company was not an “ineligible issuer” (as defined is eligible to use Free Writing Prospectuses in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and Act; any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with the rules Commission in accordance with the requirements of the Nasdaq, including, without limitation, Securities Act and the requirements for continued listing of the Common Stock on the Nasdaq, Securities Act Regulations; and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and each Free Writing Prospectus that the Company has not received any notice from filed, or is required to file, pursuant to Rule 433(d) under the Nasdaq regarding Securities Act Regulations or that was prepared by or on behalf of or used by the revocation Company complies or will comply in all material respects with the requirements of such listing or otherwise regarding the delisting of shares of Common Stock from Securities Act and the NasdaqSecurities Act Regulations.
(f) The Except for the Issuer Free Writing Prospectuses identified in Schedule I hereto, and any electronic road show relating to the public offering of shares contemplated herein, the Company has been duly incorporatednot prepared, is validly existing as a corporation in good standing under used or referred to, and will not, without the laws prior consent of the State of MarylandUnderwriter, has the corporate power and authority to own and leaseprepare, as the case may beuse or refer to, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Free Writing Prospectus.
(g) The Operating Partnership has been duly organizedPreliminary Prospectus, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Underwriter for use in connection with the public offering of the Shares contemplated herein have been and is in good standing as a foreign limited partnership in each jurisdiction in which will be identical to the conduct versions of its business or its ownership or leasing of property requires such qualificationdocuments transmitted to the Commission for filing via XXXXX, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.permitted by Regulation S-T.
(h) Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary The Shares have been duly and validly authorized and and, when issued and are duly delivered against payment therefor as contemplated by this Agreement, will be validly issued, fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all any pledge, lien, encumbrance, security interests, liens, mortgages, encumbrances, pledges, claims interest or other defects claim, and the issuance and sale of any kind (collectivelythe Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries under the organizational documents of the Company that are “significant subsidiaries” of or under any agreement to which the Company (as such term or any subsidiary is defined in Rule 1-02 of Regulation S-X)a party or otherwise.
(i) Upon the conversion of the Shares and the issuance, in accordance with the Articles Supplementary relating to the Shares, of common stock of the Company, $0.01 par value per share (the “Common Stock”) thereunder, such Common Stock shall be will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim.
(j) As soon as practicable following the Closing Time, the Shares and the Common Stock issuable upon conversion thereof will have been approved for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject to official notice of issuance; the Company has taken all necessary actions to ensure that, upon and at all times after the NYSE shall have approved the Shares and the Common Stock issuable upon conversion for listing, it will be in compliance with all applicable corporate governance requirements set forth in the NYSE’s listing standards that are then in effect and is taking such steps as are necessary to ensure that it will be in compliance with other applicable corporate governance requirements set forth in the NYSE’s listing standards not currently in effect upon the effectiveness of such requirements.
(k) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized constitutes a valid and outstanding capitalization binding agreement of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstandingOperating Partnership.
(l) None Except as otherwise disclosed in the Prospectus and Disclosure Package, since the date of the most recent financial statements incorporated by reference in the Disclosure Package: (A) there has not been any change, or any development or event that reasonably could be expected to result in a change, that has or reasonably could be expected to have a material adverse effect on the assets, business, operations, earnings, properties, condition (financial or otherwise) or prospects of the Company’s securities are rated , the Operating Partnership and their respective subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there has not been any transaction that is material to the Company, the Operating Partnership and their respective subsidiaries considered as one enterprise entered into or agreed to be entered into by the Company, the Operating Partnership or any of their subsidiaries, (C) there has not been any obligation, contingent or otherwise, directly or indirectly incurred by the Company, the Operating Partnership or any subsidiary that is material to the Company, the Operating Partnership and their subsidiaries considered as one enterprise, and (D) except for regular quarterly dividends on the common stock, regular dividends on preferred stock and regular quarterly distributions on the limited partner interests in the Operating Partnership (“nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) OP Units”), there has been no dividend or distribution of any kind declared, paid or made by the Exchange ActCompany on any class of its capital stock or by the Operating Partnership on any of its partnership interests.
(m) Neither The Company has been duly organized and is validly existing as a corporation in good standing under the execution laws of the State of Maryland and delivery has corporate power and authority to own, lease and operate its properties and to conduct its business as described in both the Prospectus and the Disclosure Package and to enter into and perform its obligations under this Agreement and, as the sole managing member of the sole general partner of the Operating Partnership, to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify could not reasonably be expected to result in a Material Adverse Effect.
(n) 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 and has partnership power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in both the Prospectus and the Disclosure Package and to enter into and perform its obligations under this Agreement; and the Operating Partnership is duly qualified as a foreign partnership to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify could not reasonably be expected to result in a Material Adverse Effect. The Company is the sole managing member of the sole general partner of the Operating Partnership. The aggregate percentage interests of the Company and the Operating Partnership of, nor the performance by the Company and limited partners in the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result are as set forth in a breach or violation of, or imposition of, any Lien upon any property or other assets of both the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over Prospectus and the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Disclosure Package. The Agreement of Limited Partnership of the Operating PartnershipPartnership has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting creditors’ rights and general principles of equity and except as amended through rights to indemnity and contribution thereunder may be limited by applicable law or policies underlying such law.
(o) Each subsidiary of the date hereof (Company has been duly organized and is validly existing in good standing under the “Partnership Agreement”)laws of the jurisdiction of its incorporation or organization, has corporate or similar organizational documents power and authority to own, lease and operate its properties and to conduct its business as described in both the Prospectus and the Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of any other Subsidiary; the ownership or (iii) any contractleasing of property or the conduct of business, agreement, obligation, covenant or instrument or any term condition or provision thereof except where the failure to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, so qualify could not reasonably be expected to have result in a Material Adverse Effect. As used hereinAll of the issued and outstanding capital stock or other ownership interests of each subsidiary has been duly authorized and validly issued, is (as applicable) fully paid and non-assessable (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act) and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, other than (i) as described in both the Prospectus and the Disclosure Package and (ii) any security interest, mortgage, pledge, lien, encumbrance, claim or equity in connection with indebtedness described in both the Prospectus and the Disclosure Package. None of the outstanding shares of capital stock or other ownership interests of any subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such subsidiary. The Company does not own or control, directly or indirectly, any corporation, association or other entity that is or will be a “significant subsidiary” (within the meaning of Rule 1-02(w) of Regulation S-X) other than the entities listed on Exhibit 21.1 to the Company’s Annual Report on Form 10-K filed with the Commission on March 15, 2016. For the purposes of this Agreement, “Repayment Eventsubsidiary” means any event or condition whicheach direct and indirect subsidiary of the Company, including, without regard to compliance with any notice or other procedural requirementslimitation, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the SubsidiariesOperating Partnership and its subsidiaries.
Appears in 1 contract
Samples: Underwriting Agreement (Ashford Hospitality Prime, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, hereby represent and warrant to each of the Agents that Underwriters, as of the date hereofof this Agreement, as of the Closing Time and as of each Representation Date Option Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(oif any), and agree with each of the Underwriters, as follows:
(a) The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied with any request on the part of the Commission for additional information.
(b) The Registration Statement as of its effective date and as of the time date hereof complied and, as it may be further amended after the date hereof, will comply, and the Preliminary Prospectus, the Prospectus and any further amendments or supplements thereto, each when filed with the Commission, complied or will comply, in all material respects with the requirements of each sale of any Placement Shares pursuant to this Agreementthe Securities Act and the Securities Act Regulations.
(ac) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the ProspectusThe Registration Statement did not, as of its effective date and or as of the date of any amendment or supplement and on any Settlement Datethereto, did not, does not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus will not, as of the date hereofapplicable filing date, at the Closing Time and any post-effective amendment theretoon each Option Closing Time, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Dateif any, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the ProspectusDisclosure Package as of [ ] [a.m./p.m.] New York City time on [ ], at 2020 (the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c“Initial Sale Time”) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedas of its issue date or date of first use and at all subsequent times through the Initial Sale Time, howevereach Issuer Free Writing Prospectus, when considered together with the Disclosure Package, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties made in this Section 3(c) shall not apply to any statement in or omitted from the Registration Statement, the Prospectus or the Disclosure Package in reliance upon and in conformity with (i) the information furnished to the Company in writing by or on behalf of the Underwriters through the Representatives expressly for use therein (it being understood and agreed that the Company and only such information furnished by any Underwriter consists of the Operating Partnership make no representation and warranty with respect to any Agent Informationinformation described as such in the last sentence of Section 11(c)) or (ii) the Selling Stockholder Information (as defined below).
(d) Each Issuer Free Writing Prospectus does not conflict with the information contained in the Registration Statement.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement Act; and the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with the rules Commission in accordance with the requirements of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, Securities Act and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the NasdaqSecurities Act Regulations.
(f) The Except for the Issuer Free Writing Prospectuses identified in Schedule III hereto, and any electronic road show relating to the public offering of the Shares, the Company has been duly incorporatednot prepared, is validly existing as a corporation in good standing under used or referred to, and will not, without the laws prior consent of the State of MarylandRepresentatives, has the corporate power and authority to own and leaseprepare, as the case may beuse or refer to, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Free Writing Prospectus.
(g) The Operating Partnership has been duly organizedPreliminary Prospectus, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Representatives for use in connection with the public offering of the Shares contemplated herein have been or will be identical to the versions of such documents transmitted to the Commission for filing via the Electronic Data Gathering Analysis and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationRetrieval System (“XXXXX”), except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.permitted by Regulation S-T.
(h) Each “significant subsidiary” From the time of the Company, including the Operating Partnership (each initial confidential submission of a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except draft registration statement relating to the extent that Shares with the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of Commission through the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectusdate hereof, the Company owns, directly or indirectly, all has been and is an “emerging growth company” as defined in Section 2(a)(19) of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind Securities Act (collectively, an “LiensEGC”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization None of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to nor any of its affiliates has (i) this Agreementengaged in any Testing the Waters Communication (as defined below) other than through, or as disclosed to, the Representatives or (ii) pursuant authorized anyone other than the Representatives to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to engage in Testing the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of Waters Communications; the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults reconfirms that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.the
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agents that Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act S-3, and no order suspending the effectiveness of the Registration Statement has been issued declared effective by the Commission.
(b) The Registration Statement and the Prospectus, including the financial statements, schedules and no proceeding for that purpose or pursuant to Section 8A of related notes included in the Securities Act against the Company or related Prospectus and, if applicable, any Term Sheet to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus, as of the date hereofhereof and at the time the Registration Statement became effective, and when any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant Registration Statement becomes effective or any amendment or supplement to Rule 430B(f)(2) and at each Settlement Datethe Prospectus is filed with the Commission, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included in 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 becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, and at the date of Closing Date, the Prospectus and any amendment the Prospectus Supplement did not or supplement thereto, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriter and the Underwriter's counsel). The Prospectus delivered to the Underwriter for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(c) 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, as of the date of the Prospectus 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 the light of the circumstances under which they were made, not misleading; provided, however, that . The foregoing representations and warranties in this Section 6(c) do not apply to the statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company makes no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the Prospectus, at the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained Underwriter specifically for inclusion in the Registration Statement or the Prospectus, including Prospectus or any document incorporated by reference therein that has not been superseded amendment or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Informationsupplement thereto.
(d) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualificationMaryland. Each of the Operating Partnership, except to First Industrial Financing Partnership, L.P. (the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise"Financing Partnership"), earningsFirst Industrial Securities, propertiesL.P. ("Securities, results of operations or prospects of the Company and the Subsidiaries (as hereinafter definedL.P."), taken as a wholeFirst Industrial Mortgage Partnership, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby L.P. (the occurrence of any such effect"Mortgage Partnership"), preventionFirst Industrial Indianapolis, interference or result described in L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P. ("DSG") and First Industrial Pennsylvania, L.P. ("FIP") (the foregoing clauses (i) or (ii) being herein Operating Partnership, the Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are referred to collectively herein as a “Material Adverse Effect”).
(gthe "Partnership Subsidiaries") The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of the State its jurisdiction of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each organization. Each of the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.
First Industrial Securities Corporation (h) Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”"FISC"), 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 full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind First Industrial Finance Corporation (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”"FIFC"), the Amended and Restated By-laws of the Company, as amended through the date hereof First Industrial Mortgage Corporation (the “Bylaws”"FIM"), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof First Industrial Pennsylvania Corporation (the “Partnership Agreement”"FIPC"), or similar organizational documents of any other Subsidiary; or First Industrial Indianapolis Corporation (iii) any contract"FIIC"), agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.First Industrial Harrisburg
Appears in 1 contract
Samples: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, hereby represent and warrant to each of the Agents that Underwriters, as of the date hereofof this Agreement, as of the Closing Time and as of each Representation Date Option Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(oif any), and agree with each of the Underwriters, as follows:
(a) The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied with any request on the part of the Commission for additional information.
(b) The Registration Statement as of its effective date and as of the time date hereof complied and, as it may be further amended after the date hereof, will comply, and the Preliminary Prospectus, the Prospectus and any further amendments or supplements thereto, each when filed with the Commission, complied or will comply, in all material respects with the requirements of each sale of any Placement Shares pursuant to this Agreementthe Securities Act and the Securities Act Regulations.
(ac) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the ProspectusThe Registration Statement did not, as of its effective date and or as of the date of any amendment or supplement and on any Settlement Datethereto, did not, does not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus will not, as of the date hereofapplicable filing date, at the Closing Time and any post-effective amendment theretoon each Option Closing Time, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Dateif any, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and the ProspectusDisclosure Package as of [·] [a.m.]/[p.m.], at New York City time, on [·], 2021 (the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c“Initial Sale Time”) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedas of its issue date or date of first use and at all subsequent times through the Initial Sale Time, howevereach Issuer Free Writing Prospectus, when considered together with the Disclosure Package, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties made in this Section 3(c) shall not apply to any statement in or omitted from the Registration Statement, the Prospectus or the Disclosure Package in reliance upon and in conformity with the information furnished to the Company in writing by or on behalf of the Underwriters through the Representatives expressly for use therein (it being understood and agreed that the Company and only such information furnished by any Underwriter consists of the Operating Partnership make no representation and warranty with respect to any Agent Informationinformation described as such in the last sentence of Section 9(b)).
(d) Each Issuer Free Writing Prospectus does not conflict with the information contained in the Registration Statement.
(e) The Company was is not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of connection with this offering pursuant to Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement Act; and the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and any Free Writing Prospectus that the Company is in material compliance required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with the rules Commission in accordance with the requirements of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, Securities Act and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the NasdaqSecurities Act Regulations.
(f) The Except for the Issuer Free Writing Prospectuses identified in Schedule II hereto, and any electronic road show relating to the public offering of the Shares, the Company has been duly incorporatednot prepared, is validly existing as a corporation in good standing under used or referred to, and will not, without the laws prior consent of the State of MarylandRepresentatives, has the corporate power and authority to own and leaseprepare, as the case may beuse or refer to, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)Free Writing Prospectus.
(g) The Operating Partnership has been duly organizedPreliminary Prospectus, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified any Issuer Free Writing Prospectuses (to transact business the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Representatives for use in connection with the public offering of the Shares contemplated herein have been or will be identical to the versions of such documents transmitted to the Commission for filing via the Electronic Data Gathering Analysis and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationRetrieval system (“EXXXX”), except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.permitted by Regulation S-T.
(h) Each “significant subsidiary” From the time of the Company, including the Operating Partnership (each initial confidential submission of a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except draft registration statement relating to the extent that Shares with the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of Commission through the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectusdate hereof, the Company owns, directly or indirectly, all has been and is an “emerging growth company” as defined in Section 2(a)(19) of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind Securities Act (collectively, an “LiensEGC”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization None of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to nor any of its affiliates has (i) this Agreementengaged in any Testing the Waters Communication (as defined below) other than through, or as disclosed to, the Representatives or (ii) pursuant authorized anyone other than the Representatives to reservations, agreements, employee benefit plans engage in Testing the Waters Communications; the Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing the Waters Communications. “Testing the Waters Communication” means any oral or dividend reinvestment or stock purchase plans referred to written communication with potential investors undertaken in reliance on Section 5(d) of the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemptionSecurities Act. Except through, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be as disclosed pursuant to the Exchange Actto, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock Representatives, none of the Company conforms in all material respects to nor any of its affiliates has distributed any Written Testing the description thereof contained in Waters Communications (as defined below). “Written Testing the Registration Statement and Waters Communications” means any Testing the Prospectus Waters Communication that is a “written communication” within the meaning of Rule 405 under the caption “Description Securities Act; no individual Written Testing the Waters Communication, when considered together with the Disclosure Package, included any untrue statement of Capital Stock.”
(k) Except as disclosed a material fact or omitted to state any material fact necessary in order to make the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, exceptstatements therein, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any light of the Subsidiariescircumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and Each of the Operating PartnershipTransaction Entities, jointly and severally, represent represents and warrant warrants to each of the Agents that Underwriter as of the date hereof, as of each Representation the Firm Shares Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Option Shares pursuant to this Agreement.Closing Date (if any), as follows:
(a) No order preventing or suspending On the use of Effective Date, the Prospectus has been issued by the CommissionRegistration Statement complied, and on the date of the Prospectus, as of its date and as of the date of any post-effective amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under becomes effective, the date any supplement or amendment to the Prospectus is filed with the Commission and each Closing Date, the Registration Statement, the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the requirements of the Securities Act and no order suspending the effectiveness Rules and the Exchange Act and the rules and regulations of the Commission thereunder. At the Effective Date, at the date hereof and at the Closing Date, the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . Each of (i) the General Disclosure Package (as defined below) as of the date Applicable Time and at the Closing Date and on each Option Closing Date, (ii) any electronic road show or investor presentation (including without limitation any “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act) delivered to and approved by the Underwriters for use in connection with the marketing of the Prospectus and any amendment or supplement theretoOffering (collectively, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light “Marketing Materials”) as of the circumstances under which they were madetime of their use and at the Closing Date and on each Option Closing Date, not misleading; provided, however, that the Company makes no representation if any and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and (iii)) the Prospectus, as amended or supplemented, as of its date, at the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus filing pursuant to Section 2(a)(10)(aRule 424(b) of the Securities Act or Rule 134 under the Securities Act or (ii) and at the Closing Date and on each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)Option Closing Date, and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusif any, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided. Notwithstanding the foregoing, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined in Rule 405) as none of the eligibility determination date for purposes of Rules 164 representations and 433 under warranties set forth above in this paragraph 2(a) shall apply to statements in, or omissions from, the Securities Act with respect to Registration Statement, any Preliminary Prospectus or the offering Prospectus made in reliance upon, and in conformity with, information herein or otherwise furnished in writing by the Representative on behalf of the Placement Shares contemplated by several Underwriters specifically for use in the Registration Statement and Statement, any Preliminary Prospectus or the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be. With respect to the preceding sentence, its properties and to operate its properties and conduct its business as described the Company acknowledges that the only information furnished in writing by the Representative on behalf of the several Underwriters for use in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus: (i) the second paragraph under the heading “Commissions and Expenses” and (ii) the first and third paragraphs under the heading “Price Stabilization, Short Positions and Penalty Bids” (collectively, the “Underwriter Information”). Each preliminary prospectus delivered to the Underwriters for use in connection with the Offering and the Prospectus and is duly qualified was or will be identical to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationelectronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(g) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of permitted by Regulation S-X).
(i) This Agreement has been duly authorized, executed T. As used in this Section and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for elsewhere in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.:
Appears in 1 contract
Samples: Underwriting Agreement (Medalist Diversified REIT, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agents that Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the The Company and the Operating Partnership make no representation meet the requirements for use of Form S-3, and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)the Registration Statement has been declared effective by the Commission.
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under and the Securities Act Prospectus, including the financial statements, schedules and no order suspending related notes included in the effectiveness of the Registration Statement has been issued by the CommissionProspectus and, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related if applicable, any Term Sheet to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus, as of the date hereofhereof and at the time the Registration Statement became effective, and when any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to Rule 430B(f)(2) and at each Settlement Datethe Prospectus is filed with the Commission, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by the Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, will comply when so filed in all material respects with all applicable provisions of the Act; will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedand the Prospectus delivered to the Underwriter for use in connection with the offering of Shares will, howeverat the time of such delivery, that be identical to the Company makes no representation and warranty electronically transmitted copies thereof filed with respect the Commission pursuant to any Agent Information. XXXXX, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined Underwriter specifically for inclusion in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectusor Prospectus or any amendment or supplement thereto.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualificationMaryland. Each of the Operating Partnership, except to First Industrial Financing Partnership, L.P. (the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise"Financing Partnership"), earningsFirst Industrial Securities, propertiesL.P. ("Securities, results of operations or prospects of the Company and the Subsidiaries (as hereinafter definedL.P."), taken as a wholeFirst Industrial Mortgage Partnership, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby L.P. (the occurrence of any such effect"Mortgage Partnership"), preventionFirst Industrial Indianapolis, interference or result described in L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P. ("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the foregoing clauses (i) or (ii) being herein Operating Partnership, the Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are referred to collectively herein as a “Material Adverse Effect”).
(gthe "Partnership Subsidiaries") The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"), First Industrial Management Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively herein as the State of Maryland"Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under and by virtue of the laws of its jurisdiction of organization. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIDSG is a wholly-owned subsidiary of the Company and is the sole general partner of DSG. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Company and each of the Subsidiaries has, and at the Closing Date will have, full corporate or partnership power and authority to own, and leaseauthority, as the case may be, its to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its properties and conduct its business in which it engages or proposes to engage as described in the Registration Statement or the Prospectus and the transactions contemplated hereby and thereby. The Company and each of the Registration Statement Corporate Subsidiaries is, and at the Prospectus and is Closing Date will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, except where failure to obtain such qualifications or registration will not have a material adverse effect on (i) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Company and its Subsidiaries, taken as whole or on the 453 in service properties owned, directly or indirectly, by the Company as of June 30, 1997 (the "Properties"), (ii) the issuance, validity or enforceability of the shares or (iii) the consummation of any of the transactions contemplated by this Agreement (a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are attached on Schedule I hereto. Each of the Partnership Subsidiaries is, and at the Closing Date will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualifications or be in good standing would registration will not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” , which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Complete and correct copies of the Company, including articles of incorporation and of the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the by-laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized charter documents, partnership agreements and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any organizational documents of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, all amendments thereto as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness been requested by the Company Underwriter or any of its counsel have been delivered to the SubsidiariesUnderwriter or its counsel.
Appears in 1 contract
Samples: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agents that Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the The Company and the Operating Partnership make no representation meet the requirements for use of Form S-3, and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)the Registration Statement has been declared effective by the Commission.
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under and the Securities Act Prospectus, including the financial statements, schedules and no order suspending related notes included in the effectiveness of the Registration Statement has been issued by the CommissionProspectus and, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related if applicable, any Term Sheet to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus, as of the date hereofhereof and at the time the Registration Statement became effective, and when any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to Rule 430B(f)(2) and at each Settlement Datethe Prospectus is filed with the Commission, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriters and Underwriters' counsel).
(c) Each 462(b) Registration Statement, if any, will comply when so filed in all material respects with all applicable provisions of the Act; will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedand the Prospectus delivered to the Underwriters for use in connection with the offering of Shares will, howeverat the time of such delivery, that be identical to the Company makes no representation and warranty electronically transmitted copies thereof filed with respect the Commission pursuant to any Agent Information. XXXXX, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined Underwriters specifically for inclusion in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectusor Prospectus or any amendment or supplement thereto.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(g) Maryland. The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under the laws and by virtue of the State Delaware Uniform Limited Partnership Act. Each of MarylandFirst Industrial Financing Partnership, has full power L.P. (the "Financing Partnership"), First Industrial Securities, L.P. ("Securities, L.P."), First Industrial Mortgage Partnership, L.P. (the "Mortgage Partnership"), First Industrial Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services L.P. ("DSG") and authority First Industrial Pennsylvania Partnership, L.P. ("FIP") (the Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are referred to own, and lease, collectively herein as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(h"Partnership Subsidiaries") Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, organized and is validly existing as a corporation, limited partnership or limited liability company in good standing under and by virtue of the laws of the its jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.
Appears in 1 contract
Samples: Underwriting Agreement (First Industrial Realty Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly Partnership each severally represents and severally, represent and warrant warrants to each of the Agents that Underwriters as of the date hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.follows:
(a) No order preventing or suspending The Company has filed a registration statement on Form S-3 (File No. 333-57871) with respect to the Shares in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder. The Company and the transactions contemplated by this Agreement meet the requirements and comply with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and Regulations) contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been delivered by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) of the Act, is herein referred to as the "Registration Statement," which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit referred to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) below. The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no order suspending the effectiveness of post-effective amendment to the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and filed as of the date of the Prospectus and any amendment or supplement thereto, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation and warranty with respect to any Agent Informationthis Agreement. The documents incorporated, or term "Prospectus" means the form of prospectus first filed with the Commission pursuant to be incorporated, by reference Rule 424(b). Each preliminary prospectus included in the Registration Statement and the Prospectus, at prior to the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby), and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company it becomes effective is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”)"Preliminary Prospectus.
(g) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority " Any reference herein to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Statement, any Preliminary Prospectus and is duly qualified or to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase amendment or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or supplement to any of the Subsidiaries or foregoing documents shall be deemed to refer to and include any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Companydocuments incorporated by reference therein, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, exceptand, in the case of (iany reference herein to any Prospectus, also shall be deemed to include any documents incorporated by reference therein, and any supplements or amendments thereto, filed with the Commission after the date of filing of the Prospectus under Rules 424(b) or 430A, and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in prior to the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives termination of the holder offering of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness Shares by the Company or any of the SubsidiariesUnderwriters.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Ramco Gershenson Properties Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and Each of the Operating PartnershipTransaction Entities, jointly and severally, represent represents and warrant warrants to each of the Agents that Underwriter as of the date hereof, as of each Representation the Firm Shares Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Option Shares pursuant to this Agreement.Closing Date (if any), as follows:
(a) No order preventing or suspending On the use of Effective Date, the Prospectus has been issued by the CommissionRegistration Statement complied, and on the date of the Prospectus, as of its date and as of the date of any post-effective amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information (as defined in Section 9(a) hereof).
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under becomes effective, the date any supplement or amendment to the Prospectus is filed with the Commission and each Closing Date, the Registration Statement, the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the requirements of the Securities Act and no order suspending the effectiveness Rules and the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations of the Commission thereunder. At the Effective Date, at the date hereof and at the Closing Date, the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) and at each Settlement Date, complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . Each of (i) the General Disclosure Package (as defined below) as of the date Applicable Time and at the Closing Date and on each Option Closing Date, (ii) any electronic road show or investor presentation (including without limitation any “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act) delivered to and approved by the Underwriters for use in connection with the marketing of the Prospectus and any amendment or supplement theretoOffering (collectively, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light “Marketing Materials”) as of the circumstances under which they were madetime of their use and at the Closing Date and on each Option Closing Date, not misleading; provided, however, that the Company makes no representation if any and warranty with respect to any Agent Information. The documents incorporated, or to be incorporated, by reference in the Registration Statement and (iii)) the Prospectus, as amended or supplemented, as of its date, at the time filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus filing pursuant to Section 2(a)(10)(aRule 424(b) of the Securities Act or Rule 134 under the Securities Act or (ii) and at the Closing Date and on each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to the extent required thereby)Option Closing Date, and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectusif any, did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided. Notwithstanding the foregoing, however, that the Company and the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined in Rule 405) as none of the eligibility determination date for purposes of Rules 164 representations and 433 under warranties set forth above in this paragraph 2(a) shall apply to statements in, or omissions from, the Securities Act with respect to Registration Statement, any Preliminary Prospectus or the offering Prospectus made in reliance upon, and in conformity with, information herein or otherwise furnished in writing by the Representative on behalf of the Placement Shares contemplated by several Underwriters specifically for use in the Registration Statement and Statement, any Preliminary Prospectus or the Prospectus.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be. With respect to the preceding sentence, its properties and to operate its properties and conduct its business as described the Company acknowledges that the only information furnished in writing by the Representative on behalf of the several Underwriters for use in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus consists solely of the following disclosure contained in the “Underwriting” section of the Prospectus: (i) the second paragraph under the heading “Commissions and Expenses” and (ii) the first and third paragraphs under the heading “Price Stabilization, Short Positions and Penalty Bids” (collectively, the “Underwriter Information”). Each preliminary prospectus delivered to the Underwriters for use in connection with the Offering and the Prospectus and is duly qualified was or will be identical to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualificationelectronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise), earnings, properties, results of operations or prospects of the Company and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(g) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Maryland, has full power and authority to own, and lease, as the case may be, its properties and to operate its properties and conduct its business as described in each of the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” of the Company, including the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of permitted by Regulation S-X).
(i) This Agreement has been duly authorized, executed T. As used in this Section and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for elsewhere in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Subsidiaries.:
Appears in 1 contract
Samples: Underwriting Agreement (Medalist Diversified REIT, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to each of the Agents that Underwriter as of the date hereof, as of each Representation hereof and the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o), and as of the time of each sale of any Placement Shares pursuant to this Agreement.that:
(a) No order preventing or suspending the use of the Prospectus has been issued by the Commission, and the Prospectus, as of its date and as of the date of any amendment or supplement and on any Settlement Date, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the The Company and the Operating Partnership make no representation meet the requirements for use of Form S-3, and warranty with respect to any Agent Information (as defined in Section 9(a) hereof)the Registration Statement has been declared effective by the Commission.
(b) The Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under and the Securities Act Prospectus, including the financial statements, schedules and no order suspending related notes included in the effectiveness of the Registration Statement has been issued by the CommissionProspectus and, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related if applicable, any Term Sheet to the offering of the Placement Shares has been initiated or, to the knowledge of the Company, threatened by the Commission. The Registration StatementProspectus, as of the date hereofhereof and at the time the Registration Statement became effective, and when any post-effective amendment thereto, as of its applicable effective date and at each deemed effective date with respect to the Agents pursuant Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to Rule 430B(f)(2) and at each Settlement Datethe Prospectus is filed with the Commission, complied and did or will comply in all material respects with all applicable provisions of the Securities Act and will contain all statements required to be stated therein in accordance with the Act. The Prospectus, including the financial statements, schedules and related notes included or incorporated by reference in the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the date hereof and at the time the Registration Statement became effective, and at the Closing Date, and when any post-effective amendment to the Registration Statement or Rule 462(b) Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, did not or will comply in all material respects with all applicable provisions of the Act and will not contain all statements required to be stated therein in accordance with the Act. On the date the Registration Statement was declared effective, on the date hereof, on the date of filing of any Rule 462(b) Registration Statement and on the Closing Date no part of the Registration Statement or any amendment did or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and . On the date the Registration Statement was declared effective, on the date hereof, as of its date, on the date of filing of any Rule 462(b) Registration Statement and at the Closing Date, the Prospectus did not and any amendment or supplement thereto, will not contain any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection with the offering and sale of the Shares, the Company will have complied or will comply with the requirements of Rule 111 under the Act relating to the payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement or Prospectus or any amendment or supplement thereto. The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Preliminary Prospectus (as hereinafter defined), the Prospectus or any other materials, if any, permitted by the Act (which were disclosed to the Underwriters and Underwriters' counsel).
(c) The preliminary prospectus supplement, dated May 8, 1997, filed pursuant to Rule 424 under the Act (the "Preliminary Prospectus") and each 462(b) Registration Statement, if any, complied or will comply when so filed in all material respects with all applicable provisions of the Act; did not or will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; providedand each Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of Shares will, howeverat the time of such delivery, that be identical to the Company makes no representation and warranty electronically transmitted copies thereof filed with respect the Commission pursuant to any Agent Information. XXXXX, except to the extent permitted by Regulation S-T.
(d) The documents incorporated, incorporated or deemed to be incorporated, incorporated by reference in the Registration Statement and Prospectus pursuant to Item 12 of Form S-3 under the ProspectusAct, at the time they were, or hereafter are, filed with the Commission, complied or will comply, in all material respects, with the requirements of the Exchange Act, or the Securities Act, as applicable.
(c) Other than the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership (including its agents and representatives, other than the Agents in its capacity as such) has prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) each electronic road show and any other written communications approved in writing in advance by the Agents. Each such Issuer Free Writing Prospectus complied and will comply in all material respects with the Securities Act (to requirements of the extent required thereby)Exchange Act, and, when read together with other information included and incorporated by reference in the Prospectus, at the time the Registration Statement became effective, as of the date of the Prospectus, and as of the Closing Date, or during the period specified in Section 5(c) did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that . The foregoing representations and warranties in this Section 6(d) do not apply to any statements or omissions made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company and by the Operating Partnership make no representation and warranty with respect to any Agent Information.
(d) The Company was not an “ineligible issuer” (as defined Underwriters specifically for inclusion in Rule 405) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Placement Shares contemplated by the Registration Statement and the Prospectusor Prospectus or any amendment or supplement thereto.
(e) The Placement Shares have been authorized for listing on the Nasdaq, subject to official notice of issuance and the Company is in material compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common Stock on the Nasdaq, and there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened or contemplated, and the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting of shares of Common Stock from the Nasdaq.
(f) The Company has been duly incorporated, organized and is validly existing as a corporation in good standing under and by virtue of the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its properties and to operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which with the conduct State Department of its business or its ownership or leasing Assessments and Taxation of property requires such qualificationMaryland. Each of the Operating Partnership, except to First Industrial Financing Partnership, L.P. (the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected to (i) have a material adverse effect on the assets, business, condition (financial or otherwise"Financing Partnership"), earningsFirst Industrial Securities, propertiesL.P. ("Securities, results of operations or prospects of the Company and the Subsidiaries (as hereinafter definedL.P."), taken as a wholeFirst Industrial Mortgage Partnership, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby L.P. (the occurrence of any such effect"Mortgage Partnership"), preventionFirst Industrial Indianapolis, interference or result described in L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P. ("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the foregoing clauses (i) or (ii) being herein Operating Partnership, the Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are referred to collectively herein as a “Material Adverse Effect”).
(gthe "Partnership Subsidiaries") The Operating Partnership has been duly organized, organized and is validly existing as a limited partnership in good standing under and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Securities Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"), First Industrial Management Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively herein as the State of Maryland"Corporate Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries are referred to herein collectively as the "Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under and by virtue of the laws of its jurisdiction of organization. Other than the Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which the Company owns any equity securities constitute, individually or in the aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The Company is the sole general partner of the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general partner of the Financing Partnership. FIM is a wholly-owned subsidiary of the Company and is the sole general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole general partner of Securities, L.P. The Operating Partnership and FISC are the only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general partner of FII. FIDSG is a wholly-owned subsidiary of the Company and is the sole general partner of DSG. The Operating Partnership is the sole limited partner of each Partnership Subsidiary (except for Securities, L.P.). The Company and each of the Subsidiaries has, and at the Closing Date and, if later, an Option Closing Date, will have, full corporate or partnership power and authority to own, and leaseauthority, as the case may be, its to conduct all the activities conducted by it, to own, lease or operate all the properties and other assets owned, leased or operated by it and to operate its properties and conduct its business in which it engages or proposes to engage as described in the Registration Statement or the Prospectus and the transactions contemplated hereby and thereby. The Company and each of the Registration Statement Corporate Subsidiaries is, and at the Prospectus and is Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to transact do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of the activities conducted by it or the character of the properties and assets owned, leased or operated by it makes such qualification or registration necessary, except where failure to obtain such qualifications or registration will not have a material adverse effect on (i) the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Company and its Subsidiaries, taken as whole or on the 379 in service properties owned, directly or indirectly, by the Company as of December 31, 1996 (the "Properties"), (ii) the issuance, validity or enforceability of the shares or the enforceability of the Deposit Agreement or (iii) the consummation of any of the transactions contemplated by this Agreement and/or the Deposit Agreement (a "Material Adverse Effect"), which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Each of the Partnership Subsidiaries is, and at the Closing Date or, if later, an Option Closing Date, will be, duly qualified or registered to do business and in good standing as a foreign limited partnership in each jurisdiction all jurisdictions in which the conduct nature of its business the activities conducted by it or its ownership the character of the assets owned, leased or leasing of property requires operated by it makes such qualificationqualification or registration necessary, except to the extent that the where failure to be so qualified obtain such qualifications or be in good standing would registration will not reasonably be expected to have a Material Adverse Effect.
(h) Each “significant subsidiary” , which jurisdictions of foreign qualification or registration are attached on Schedule II hereto. Complete and correct copies of the Company, including articles of incorporation and of the Operating Partnership (each a “Subsidiary” and collectively, the “Subsidiaries”), has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the by-laws of the jurisdiction of its organization, has full 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 and the Prospectus and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. All of the issued shares of capital stock or other equity interests of each Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement and the Prospectus, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary, and all such shares or other equity interests are owned free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule 3 hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership. The shares of Common Stock outstanding prior to the issuance of the Placement Shares have been duly authorized charter documents, partnership agreements and are validly issued, fully paid and non-assessable. The Placement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Placement Shares will not be subject to any preemptive or similar rights.
(j) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to (i) this Agreement, (ii) pursuant to reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement and the Prospectus, (iii) pursuant to the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement and the Prospectus or (iv) unregistered issuances not required to be disclosed pursuant to the Exchange Act, the Securities Act or any rule or regulation promulgated thereunder). The authorized capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption “Description of Capital Stock.”
(k) Except as disclosed in the Registration Statement and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for shares of capital stock or ownership interests in the Company are outstanding.
(l) None of the Company’s securities are rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(m) Neither the execution and delivery by the Company and the Operating Partnership of, nor the performance by the Company and the Operating Partnership of its respective obligations under, this Agreement will conflict with, contravene, result in a breach or violation of, or imposition of, any Lien upon any property or other assets of the Company or any Subsidiary pursuant to, or constitute a default (or give rise to any right of termination, acceleration, cancellation, repurchase or redemption) or Repayment Event (as hereinafter defined) under: (i) any statute, law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Company or any organizational documents of the Subsidiaries or any of their respective properties or other assets; (ii) the Articles of Amendment and Restatement of the Company, all amendments thereto as amended or supplemented through the date hereof (the “Charter”), the Amended and Restated By-laws of the Company, as amended through the date hereof (the “Bylaws”), the Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), or similar organizational documents of any other Subsidiary; or (iii) any contract, agreement, obligation, covenant or instrument or any term condition or provision thereof to which the Company, the Operating Partnership, or any Subsidiary or any of their respective properties or other assets is subject or bound, except, in the case of (i) and (iii) above, for such conflicts, breaches, violations, lien impositions or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As used herein, “Repayment Event” means any event or condition which, without regard to compliance with any notice or other procedural requirements, gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness been requested by the Company Underwriters or any of their counsel have been delivered to the SubsidiariesUnderwriters or their counsel.
Appears in 1 contract
Samples: Underwriting Agreement (First Industrial Realty Trust Inc)
