an Acquiror Material Adverse Effect.
(D)
LITIGATION.
THERE IS NO ACTION PENDING OR, TO ACQUIROR'S
KNOWLEDGE, THREATENED AGAINST ACQUIROR OR ANY OF THE ACQUIROR SUBSIDIARIES OR
ANY OF ITS OR THEIR RESPECTIVE PROPERTIES OR ASSETS THAT QUESTIONS THE VALIDITY
OF THIS AGREEMENT OR ANY ACTION TO BE TAKEN BY ACQUIROR OR MERGER SUBSIDIARY IN
CONNECTION WITH THE CONSUMMATION OF THE MERGER.
(E)
BROKERS.
NO BROKER, FINDER OR INVESTMENT BANKER IS ENTITLED TO
ANY BROKERAGE, FINDER'S OR OTHER FEE OR COMMISSION PAYABLE BY ACQUIROR IN
CONNECTION WITH THE MERGER BASED UPON ARRANGEMENTS MADE BY AND ON BEHALF OF
ACQUIROR OR MERGER SUBSIDIARY OR ANY OF THEIR SUBSIDIARIES.
(F)
OWNERSHIP OF MERGER SUBSIDIARY; NO PRIOR ACTIVITIES.
MERGER
SUBSIDIARY IS A DIRECT WHOLLY OWNED SUBSIDIARY OF ACQUIROR.
MERGER SUBSIDIARY
IS A DISREGARDED ENTITY FOR FEDERAL INCOME TAX PURPOSES.
MERGER SUBSIDIARY HAS
NOT CONDUCTED ANY ACTIVITIES OTHER THAN IN CONNECTION WITH ITS ORGANIZATION, THE
NEGOTIATION AND EXECUTION OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
MERGER SUBSIDIARY HAS NO SUBSIDIARIES.
40
(G)
NO OWNERSHIP OF TARGET COMMON STOCK.
NEITHER ACQUIROR NOR ANY OF
THE ACQUIROR SUBSIDIARIES, INCLUDING MERGER SUBSIDIARY, OWN ANY TARGET COMMON
STOCK OR OTHER SECURITIES OF TARGET.
6.04.
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND ACQUIROR OP.
Acquiror and Acquiror OP represent and warrant to Target as follows:
(A)
CAPITALIZATION.
(I)
AS OF THE DATE OF THIS AGREEMENT, THE AUTHORIZED CAPITAL STOCK OF
ACQUIROR CONSISTS OF 75,000,000 ACQUIROR COMMON SHARES AND 15,000,000 ACQUIROR
PREFERRED SHARES, CONSISTING OF (1) 42,375,505 OUTSTANDING ACQUIROR COMMON
SHARES, (2) 2,200,000 8.0% SERIES G CUMULATIVE REDEEMABLE PREFERRED SHARES, ALL
OF WHICH WERE ISSUED AND OUTSTANDING, (3) 2,000,000 7.5% SERIES H CUMULATIVE
REDEEMABLE PREFERRED SHARES, ALL OF WHICH WERE ISSUED AND OUTSTANDING AND (4)
3,390,000 7.625% SERIES J CUMULATIVE REDEEMABLE PREFERRED SHARES OF WHICH
3,390,000 WERE ISSUED AND OUTSTANDING.
(II)
ALL OUTSTANDING ACQUIROR COMMON SHARES AND ACQUIROR PREFERRED
SHARES ARE, AND THE COMMON SHARE CONSIDERATION AND THE PREFERRED SHARE
CONSIDERATION TO BE ISSUED IN CONNECTION WITH THE MERGER WILL BE, DULY
AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND NOT SUBJECT TO, OR
ISSUED IN VIOLATION OF, ANY PREEMPTIVE RIGHT, PURCHASE OPTION, CALL OPTION,
RIGHT OF FIRST REFUSAL, SUBSCRIPTION OR ANY OTHER SIMILAR RIGHT.
(III)
ACQUIROR OWNS APPROXIMATELY 82.4% OF THE OUTSTANDING COMMON
UNITS, 2,200,000 SERIES G PREFERRED UNITS, 2,000,000 SERIES H PREFERRED UNITS
AND 3,390,000 SERIES J PREFERRED UNITS ISSUED BY ACQUIROR OP, AND 352,000 SERIES
I PREFERRED UNITS ISSUED BY ACQUIROR OP ARE OWNED BY A THIRD PARTY AND HAVE A
LIQUIDATION PREFERENCE OF $25.00.
(IV)
THE AUTHORIZED CAPITAL SHARES OF MERGER SUBSIDIARY CONSISTS OF
1,000 MERGER SUBSIDIARY COMMON SHARES.
ALL OF THE ISSUED AND OUTSTANDING
CAPITAL SHARES OF MERGER SUBSIDIARY ARE OWNED BY ACQUIROR OR ACQUIROR
SUBSIDIARIES. MERGER SUBSIDIARY DOES NOT HAVE ISSUED OR OUTSTANDING ANY OPTIONS,
WARRANTS, SUBSCRIPTIONS, CALLS, RIGHTS, CONVERTIBLE SECURITIES OR OTHER
AGREEMENTS OR COMMITMENTS OBLIGATING MERGER SUBSIDIARY TO ISSUE, TRANSFER OR
SELL ANY MERGER SUBSIDIARY COMMON SHARES TO ANY PERSON, OTHER THAN ACQUIROR
SUBSIDIARIES.
(V)
EXCEPT AS PROVIDED HEREIN,