Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, represent, warrant and covenant to each Underwriter as follows: (a) The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the provisions of the Act. (b) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commission, and the Preliminary Prospectus included in the Disclosure Package, at the time of filing thereof, complied in all material respects with the Act, and the Preliminary Prospectus, as of its date and as of the date hereof, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(a) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below). (i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405). (d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content. (e) (i) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and will not on the Closing Date 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 preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content. (i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer. (g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content. (h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. (i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus. (j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived). (k) The Parent is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”). (l) Each Subsidiary Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect. (m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba. (n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus. (o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described. (p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”). (q) (A) As of the date of this Agreement, the Parent and its respective subsidiaries have good and marketable title in fee simple to, all of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will
Appears in 2 contracts
Sources: Underwriting Agreement (Agree Realty Corp), Underwriting Agreement (Agree Realty Corp)
Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, representrepresent and warrant to, warrant and covenant to agree with, each Underwriter as follows:set forth below in this Section 1.
(a) The Basic Issuer meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder (the “Securities Act”) and the Issuer has prepared and filed with the SEC an automatic shelf registration statement, as defined in Rule 405 under the Securities Act, on Form S-3 (File No. 333- 211523), including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the SEC pursuant to Rule 424(b) under the Securities Act and deemed part of such registration statement pursuant to Rule 430A, 430B or 430C under the Securities Act, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended (the “Registration Statement”), including a related base prospectus, for registration under the Securities Act of the offering and sale of the Securities (the “Base Prospectus”). Such Registration Statement, including any amendments thereto filed prior to the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), became effective upon filing. The Issuer may have filed with the SEC, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements to the Base Prospectus relating to the Securities which is used prior to the filing of the Final Prospectus, together with the Base Prospectus (the “Preliminary Prospectus”), each of which has previously been furnished to you. The Issuer will file with the SEC a final prospectus supplement relating to the Securities in accordance with Rule 424(b) after the Execution Time, together with the Base Prospectus (the “Final Prospectus” and, together with the Base Prospectus and each Preliminary Prospectus, if anythe “Prospectus”). As filed, such Final Prospectus supplement shall contain all information required by the Securities Act and the rules thereunder, and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Issuer has advised you, prior to the Execution Time, will be included as part or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act. The initial Effective Date of the Registration Statement as originally filed or as part of was not earlier than the date three years before the Execution Time. The Issuer has not received from the SEC any amendment or supplement thereto, or filed notice pursuant to Rule 424, complied when so filed in all material respects with the provisions 401(g)(2) of the Act.
(b) Securities Act objecting to the use of the automatic shelf registration statement form and the Issuer has not otherwise ceased to be eligible to use the automatic shelf registration form. No stop order suspending the effectiveness of the Registration Statement is in effect, the SEC has not issued any order or notice preventing or suspending the use of the Preliminary Prospectus has been issued by the CommissionRegistration Statement, and the Preliminary Prospectus included or the Final Prospectus and no proceedings for such purpose or pursuant to Section 8A of the Securities Act have been instituted or are pending or, to the best knowledge of the Issuer or the Guarantor, are contemplated or threatened by the SEC;
(i) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) under the Disclosure PackageSecurities Act and on the Closing Date (as defined herein), at the time of filing thereofFinal Prospectus (and any supplement thereto) will, complied comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Preliminary ProspectusTrust Indenture Act of 1939, as of its date amended and as the rules and regulations of the date hereofSEC promulgated thereunder (the “Trust Indenture Act”) and the respective rules thereunder; on each Effective Date, at the Execution Time and on the Closing Date, the Registration Statement did not, does not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(a) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below).
(i) At the original effectiveness of the Registration Statement; provided, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendmenthowever, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time that the Issuer makes no representations or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) warranties as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements the information contained in or omissions omitted from the Registration Statement, the Disclosure Package Statement or the Final Prospectus made (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Underwriters Content.Issuer by or on behalf of any Underwriter through the Representative specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof;
(e) (i) The Disclosure Package, and (ii) The documents incorporated by reference in each electronic road show, if any, when taken together as a whole with of the Registration Statement and the Disclosure Package, did not at when they were filed with the Applicable Time Commission conformed in all material respects to the requirements of the Exchange Act, and will not on the Closing Date contain none of such documents contained any untrue statement of a material fact or omit omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements ; and any further documents so filed and incorporated by reference in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that and the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filedDisclosure Package, when such amendment was filed)documents become effective or are filed with the Commission, conformed as the case may be, will conform in all material respects with to the requirements of the Securities Act or the Exchange Act Act, as applicable, and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to will not contain any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(l) Each Subsidiary Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and its respective subsidiaries have good and marketable title in fee simple to, all of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will ;
Appears in 2 contracts
Sources: Underwriting Agreement (TRI Pointe Group, Inc.), Underwriting Agreement (TRI Pointe Group, Inc.)
Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, represent, warrant and covenant to each Underwriter as follows:
(a) The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the provisions of the Act.
(b) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commission, and the Preliminary Prospectus included in the Disclosure Package, at the time of filing thereof, complied in all material respects with the Act, and the Preliminary Prospectus, as of its date and as of the date hereof, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(a6(b) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below).
(i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content.
(e) (i) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and will not on the Closing Date 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 preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iiiii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(l) Each Subsidiary Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and its respective subsidiaries have good and marketable title in fee simple to, all of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will not result in a forfeiture or reversion of title thereof; (C) none of the Issuer, the Guarantors or any of their subsidiaries has received from any governmental authority any written notice of any condemnation of, or zoning change affecting any of, the Properties, and neither the Issuer nor any Guarantor knows of any such condemnation or zoning change which is threatened and which, in each case, if consummated would reasonably be expected to have a Material Adverse Effect; (D) the leases under which the Guarantors or any of their subsidiaries leases the Properties as lessor (the “Leases”) are in full force and effect and have been en
Appears in 1 contract
Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, Guarantors jointly and severally, represent, severally represent and warrant and covenant to each Underwriter as followsthe Initial Purchaser that:
(a) The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the provisions of the Act.
(b) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commission, and the Preliminary Prospectus included in the Disclosure Package, at the time of filing thereof, complied in all material respects with the Act, and the Preliminary Prospectus, Offering Circular as of its date did not, and the Final Offering Circular as of its date did not, and as of the date hereof, did Closing Date will not, does not and will not contain any untrue statement of a material fact fact, or omit to state a material fact (except in the case of the Preliminary Offering Circular, for pricing terms and other financial or similar terms intentionally left blank) necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation , except that the representations and warranty contained warranties set forth in this Section 6(a4(a) does do not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with information relating to the Underwriters Content (as defined below).
Initial Purchaser and furnished to the Issuer or the Company in writing by the Initial Purchaser expressly for use in the Preliminary Offering Circular or the Final Offering Circular. No injunction or order has been issued that either (i) At the original effectiveness asserts that any of the Registration Statement, transactions contemplated by the Documents is subject to the registration requirements of the Act or (ii) at would prevent or suspend the time issuance or sale of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing DatePreliminary Offering Circular, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content.
(e) (i) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and will not on the Closing Date 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 preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (Final Offering Circular or any amendment or supplement thereto), there are no persons with registration or other similar rights to have in any equity or debt securitiesjurisdiction. Each of the Preliminary Offering Circular and the Final Offering Circular, including securities which are convertible into or exchangeable for equity securitiesas of their respective dates contained, registered pursuant to and the Registration Statement or otherwise registered by Final Offering Circular, as of the Issuer Closing Date will contain, all the information specified in, and meet the requirements of Rule 144A(d)(4) under the Act (other than those that have been waived)Act.
(kb) Each company or other entity in which the Successor and the Company, directly or indirectly through any of their respective subsidiaries, owns more than fifty percent (50%) of any class of equity securities or interests is listed on Schedule I attached hereto (all such companies other than ▇▇▇▇▇▇ International Metals, Inc., the “Subsidiaries”). The Parent Issuer does not have any Subsidiaries as of the date hereof and as of the Closing Date will not have any Subsidiaries.
(c) Each of the Issuer, the Successor, the Company and the Subsidiaries (i) has been duly organized or formed and is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formationcompany, with full corporate or partnership power, as applicable, (ii) has all requisite company power and authority to carry on its business and to own, lease and operate its properties and to conduct its business assets as described in the Registration Statement, the Disclosure Package and the ProspectusOffering Circular, and each (iii) is duly registered and qualified or licensed to conduct its do business, and is in good standing, authorized to do business in each jurisdiction or place where in which the nature of its properties such businesses or the conduct ownership or leasing of its business such properties requires such registration or qualification, except where the failure to be so register qualified or qualify licensed would not reasonably be expected to not, individually or in the aggregate, have a material adverse effect on (A) the condition (financial or other), prospects, earningsproperties, business, propertiesoperations, net worth assets, liabilities or results of operations financial condition of the Parent Issuer, the Successor, the Company and its subsidiaries the Subsidiaries, taken as a whole, whether (B) the ability of each of the Issuer, the Company or not arising from transactions the Guarantors to perform their respective obligations in all material respects under any of the Documents, (C) the attachment, perfection or priority of any of the Liens or security interests intended to be created by the Collateral Agreements which Liens or security interests are, individually or in the ordinary course aggregate, material, or (D) the validity or enforceability of business any of the Documents, and (E) the consummation of any of the transactions contemplated under any of the Documents (each, a “Material Adverse Effect”).
(ld) Each Subsidiary Guarantor All of the issued share capital of each of the Issuer, the Successor, the Company and the Subsidiaries has been duly authorized, validly issued and allotted, and is fully paid and nonassessable, and was not issued in violation of, and is not subject to (other than by operation of law under the Companies Act 1985 (UK)), any preemptive or similar rights. The column titled “Actual” in the table under the caption “Capitalization” in the Final Offering Circular (including the footnotes thereto) sets forth, as of its date, the capitalization of the Company. All of the issued share capital or other equity interests of (i) each of the Subsidiaries of the Company are owned, directly or indirectly, by the Company, and (ii) the Issuer are, and, upon consummation of the Acquisition, the Company will be, owned, directly or indirectly by the Successor, in each case, free and clear of all liens, security interests, mortgages, pledges, charges, equities, claims or restrictions on transferability or encumbrances of any kind other than those (i) imposed by the Act or the securities or “Blue Sky” laws of certain domestic or foreign jurisdictions, (ii) granted pursuant to or in connection with the Company’s existing credit facilities, existing notes or existing letters of credit or (iii) contemplated by this Agreement, the Working Capital Facility, or any of the Documents (collectively, the “Liens”). Except as disclosed in the Offering Circular and except in connection with the Acquisition, there are no outstanding (A) options, warrants or other rights to purchase from the Issuer, the Successor, the Company or any of the Subsidiaries, (B) agreements, contracts, arrangements or other obligations of the Issuer, the Successor, the Company or any of the Subsidiaries to issue or (C) other rights to convert any obligation into or exchange any securities for, in the case of each of clauses (A) through (C), share capital of or other ownership or equity interests in the Issuer, the Successor, the Company or any of the Subsidiaries.
(e) Except as contemplated by this Agreement or the Registration Rights Agreement, no holder of securities of the Issuer, the Successor, the Company or any of the Subsidiaries will be entitled to have such securities registered under the registration statements required to be filed by the Issuer, the Company and the Guarantors with respect to the Notes pursuant to the Registration Rights Agreement.
(f) The Issuer, the Company and each of the other subsidiaries Guarantors has all requisite company power and company authority to execute, deliver and perform its obligations under the Documents to which it is a party and to consummate the transactions contemplated thereby.
(g) This Agreement has been duly and validly authorized, executed and delivered by the Issuer and each of the Parent Guarantors (other than the Company) and, effective upon the consummation of the Acquisition, will be duly and validly authorized, executed and delivered by the Company. The execution, delivery and performance of the Indenture and the Collateral Agreements have been duly and validly authorized by, to the extent party thereto, the Issuer) is a corporation, limited liability companythe Company and the Guarantors. Each of the Indenture and the Collateral Agreements, limited partnership or trustwhen executed and delivered by the Issuer, the Company and the Guarantors, as applicable, and assuming due authorization, execution and delivery by the Trustee and the Collateral Agent, will constitute a legal, valid and binding obligation of each of the Issuer, the Company and the Guarantors, as applicable, enforceable against each of the Issuer, the Company and the Guarantors, as applicable, in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) general principles of equity (whether considered in a proceeding at law or in equity) and the discretion of the court or other body before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and except as rights to indemnity and contribution may be limited by federal or state securities laws or public policy considerations.
(h) The Registration Rights Agreement has been duly organizedand validly authorized by the Issuer, the Company and the Guarantors. The Registration Rights Agreement, when executed and delivered by the Issuer, the Company and the Guarantors and assuming due authorization, execution and delivery by the Initial Purchaser, will constitute a legal, valid and binding obligation of the Issuer, the Company and the Guarantors, enforceable against the Issuer, the Company and the Guarantors in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and
(ii) general principles of equity (whether considered in a proceeding at law or in equity) and the discretion of the court or other body before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(i) The Notes, when issued, will be in the form contemplated by the Indenture. When duly executed and delivered by the Issuer, and to the extent parties thereto, the Guarantors, the Indenture will meet the requirements for qualification under the Trust Indenture Act of 1939, as amended (the “TIA”). The Notes, Exchange Notes and Private Exchange Notes have each been duly and validly authorized by the Issuer (and by the Successor, effective upon the consummation of the Liquidation and Assumption) and, in the case of the Notes, when duly authenticated by the Trustee, delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement and the Indenture, the Notes will have been duly executed, validly existing issued and in good standing under delivered by the laws Issuer and will be legal, valid and binding obligations of the Issuer (and effective upon the consummation of the Liquidation and Assumption, the Successor), entitled to the benefit of the Indenture and, enforceable against the Issuer (and, effective upon the consummation of the Liquidation and Assumption, the Successor) in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) general principles of equity (whether considered in a proceeding at law or in equity) and the discretion of the court before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and except as rights to indemnity and contribution may be limited by federal or state securities laws or public policy considerations.
(j) The Guarantees and the Private Exchange Guarantees have been duly and validly authorized by the Guarantors and, when executed by the Guarantors in accordance with the terms of the Indenture, and assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchaser against payment therefor in accordance with the terms of this Agreement and the Indenture, will have been duly executed, issued and delivered by each such Guarantor and will be legal, valid and binding obligations of the Guarantors, entitled to the benefit of the Indenture, enforceable against the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and except as rights to indemnity and contribution may be limited by federal or state securities laws or public policy considerations.
(k) None of the Issuer, the Successor, the Company or any of the Company’s Subsidiaries is in violation of its formationmemorandum and articles of association, certificate of incorporation, or other organizational documents (the “Charter Documents”). None of the Issuer, the Successor, the Company or any of the Company’s Subsidiaries is (i) in violation of any statute, law (including, without limitation, common law) or ordinance, or any judgment, decree, rule, regulation or order applicable to any of them or their respective properties (collectively, “Applicable Law”) of any governmental authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory organization with jurisdiction over any of them or any of their respective properties (each, a “Governmental Authority”), or (ii) in breach of or default under any bond, debenture, note or other evidence of indebtedness, indenture, mortgage, charge, deed of trust, lease or any other agreement or instrument to which any of them is a party or by which any of them or their respective property is bound (collectively, “Applicable Agreements”), other than as set forth on Schedule III heretodisclosed in the Final Offering Circular and except for such violations, except where breaches or defaults that could not, individually or in the failure aggregate, reasonably be expected to be in good standing would not result in a Material Adverse Effect. There exists no condition that, with full corporatethe passage of time or otherwise, limited liability companywould constitute (a) a violation of any such (1) Charter Document or (2) Applicable Law, partnership (b) a breach of or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described default under any Applicable Agreement or (c) result in the Registration Statementimposition of any penalty or the acceleration of any indebtedness that in the case of clause (a)(2), (b) or (c) above could reasonably be expected to result in a Material Adverse Effect.
(l) Neither the execution, delivery or performance by the Issuer, the Disclosure Package Company or the Guarantors of the Documents to which they are parties nor the consummation by them of any transactions contemplated therein will conflict with, violate, constitute a breach of or a default (with the passage of time or otherwise) under, require the consent of any person (other than consents already obtained and in full force and effect or that will have been obtained on or prior to the ProspectusClosing Date, including the consents contemplated by the provisions of Section 7(m) of this Agreement) under, result in the imposition of a Lien on any assets of the Issuer, the Company or any of the Guarantors, or result in an acceleration of indebtedness under or pursuant to (i) the Charter Documents, (ii) any Applicable Agreement, or (iii) assuming the accuracy of the representations and each is duly registered and qualified to conduct its business, and is warranties of the Initial Purchaser in good standingSection 6 of this Agreement and, in each jurisdiction or place where the nature case of its properties any Exempt Resales made to Accredited Investors, the accuracy of the representations and warranties of such Accredited Investors contained in the Accredited Investor Letters executed by such Accredited Investors, any Applicable Law, except for conflicts, violations, breaches, defaults, consent requirements, Lien impositions or the conduct acceleration of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would indebtedness that could not reasonably be expected to have result, in the case of clauses (ii) or (iii) above, a Material Adverse Effect.
(m) Neither When executed and delivered, the Parent, nor Documents will conform in all material respects to the Issuer nor any of their subsidiaries does any business descriptions thereof in Cubathe Final Offering Circular.
(n) Other than as set forth on Schedule III hereto, neither Assuming the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each accuracy of the Guarantor’s subsidiaries (including the equity interests representations and warranties of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed Initial Purchaser in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance Section 6 of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effectand, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii)any Exempt Resales made to Accredited Investors, which violation would not reasonably be expected to have a Material Adverse Effectthe accuracy of the representations and warranties of such Accredited Investors contained in the Accredited Investor Letters executed by such Accredited Investors, no consent, approval, authorization or (iii) any decree order of any court Governmental Authority is required for the issuance and sale by the Issuer of the Notes to the Initial Purchaser or governmental agency the consummation by the parties hereto (other than the Initial Purchaser) of the other transactions contemplated hereby, except (A) such as have been obtained or body having jurisdiction over will be obtained under or made on or prior to the IssuerClosing Date, the Guarantors or their subsidiaries; or (B) except as disclosed in registration of the Exchange Offer or resale of the Notes under the Act pursuant to the Registration StatementRights Agreement, and qualification of the Disclosure Package and Indenture under the Prospectus (or any amendment or supplement thereto)TIA, in default in any material respect in connection with the performance issuance of any obligationthe Exchange Notes, agreement, condition or covenant (financial or otherwiseC) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (such filings and recordings with Governmental Authorities as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, required to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and its respective subsidiaries have good and marketable title in fee simple to, all of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will per
Appears in 1 contract
Representations and Warranties of the Issuer and the Guarantors. (i) The Issuer and the Issue Date Guarantors, and insofar as the Issuer and the Issue Date Guarantors are providing representations and warranties with respect to the Target, the Target Group and/or the Post-Completion Guarantors, to the knowledge of the Issuer and the Issue Date Guarantors after due inquiry, and (ii) the Target and each other Post-Completion Guarantor upon its accession to this Agreement pursuant to Section 25 hereof, in each case jointly and severallyseverally represent and warrant to and agree with each Initial Purchaser as of the date hereof and as of the Closing Date (unless another time is expressly specified below), represent, warrant and covenant to each Underwriter as followsset forth below:
(a) The Basic Prospectus Preliminary Offering Memorandum, as of its date, did not, the Time of Sale Information, at the Time of Sale, did not, and each Preliminary Prospectusat the Closing Date, if any, included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the provisions of the Act.
(b) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commissionwill not, and the Preliminary Prospectus included in the Disclosure Package, at the time of filing thereof, complied in all material respects with the Act, and the Preliminary ProspectusOffering Memorandum, as of its date and as of the date Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuer in writing by or on behalf of such Initial Purchaser through the Representatives expressly for use in the Preliminary Offering Memorandum, the Time of Sale Information or the Offering Memorandum (which information consists solely of the information described in Section 13(a) hereof).
(b) The Issuer and the Guarantors (including their agents and representatives, other than the Initial Purchasers, as to whom the Issuer and the Guarantors make no representation) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or a solicitation of an offer to buy the Securities (each such communication by the Issuer, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below), an “Issuer Written Communication”) other than (i) the Preliminary Offering Memorandum, (ii) the Offering Memorandum, (iii) the other Time of Sale Information, and (iv) any other written communication (including, without limitation, any written communication used in connection with any road show or electronic road show), in each case used in accordance with Section 4(d) hereof.
(c) When taken together with the Time of Sale Information, each Issuer Written Communication did not, does not and at the Closing Date will not not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The ; provided that the Issuer and the Guarantors make no representation and warranty contained in this Section 6(a) does not apply with respect to any statements in or omissions from the Preliminary Prospectus made in each such Issuer Written Communication in reliance upon and in conformity with the Underwriters Content (as defined below).
(i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant information relating to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time any Initial Purchaser furnished to the Issuer or the Guarantors in writing by or on behalf of such Initial Purchaser through the Representatives expressly for use in any person acting on its behalf Issuer Written Communication (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as which information consists solely of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined information described in Rule 405Section 13(a) hereof).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined Since the date of the most recent consolidated financial statements of the Target Group included in Rule 405) each of the Time of Sale Information and the Notes Offering Memorandum, in the case of the Target and the Guarantees have other Post-Completion Guarantors, and since their respective dates of incorporation, in the case of the Issuer and the Issue Date Guarantors, there has not been any material adverse change, or any development which would reasonably be expected to result in a material adverse change, in or affecting the business, senior management, financial position, shareholders’ equity, results of operations or prospects of the Issuer or the Issue Date Guarantors or the Target Group, taken as a whole (a “Material Adverse Effect”), except in each case as otherwise disclosed in each of the Time of Sale Information and remain eligible for registration by the Offering Memorandum.
(e) The industry, statistical and market-related data included in the Time of Sale Information and the Offering Memorandum are based on or derived from sources (including those described in each of the Time of Sale Information and the Offering Memorandum under the heading “Industry Overview—Competitive Landscape”) which the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement believe to be reliable and accurate in all material respects.
(f) Each of the Issuer and the Issue Date Guarantors has become effective been duly incorporated or organized, as the case may be, and is validly existing under the Act. No order suspending the effectiveness laws of its respective jurisdiction of organization, with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in each of the Registration Statement Time of Sale Information and the Offering Memorandum, and has been issued duly qualified and, if applicable, is in good standing, under the laws of each other jurisdiction in which it owns, leases or operates properties or conducts any business, other than where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect.
(g) The Target has been duly incorporated and is validly existing as a public limited company under the laws of England and Wales, with registration number 08700412, and with power and authority to own, lease and operate its properties and conduct its business as described in each of the Time of Sale Information and the Offering Memorandum, and has been duly qualified and, if applicable, is in good standing, under the laws of each other jurisdiction in which it owns, leases or operates properties or conducts any business, other than where the failure to be so qualified or in good standing would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(h) Each of the Issuer and the Guarantors has been duly incorporated or organized, as the case may be, and is validly existing under the laws of its jurisdiction of organization, with power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in each of the Time of Sale Information and the Offering Memorandum, and has been duly qualified and, if applicable, is in good standing, under the laws of each other jurisdiction in which it owns, leases or operates properties or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect. None of the Issuer, the Issue Date Guarantors, or any entity within the Target Group is in bankruptcy, liquidation or receivership or examinership or subject to any similar proceeding, other than, with respect to any subsidiary, proceedings which would not reasonably be expected to have a Material Adverse Effect.
(i) Each of the Issuer and the Target has an authorized capitalization as set forth in the Time of Sale Information and the Offering Memorandum under the heading “Capitalisation”; the outstanding share capital of each of the Issuer, the Guarantors and the Target has been duly authorized and is validly issued, fully paid and non-assessable; and the outstanding share capital or other equity interests held by each of the Issuer, the Guarantors and the Target and their wholly-owned subsidiaries, in each case, is duly authorized, validly issued, fully-paid and non-assessable, and except for any directors’ qualifying shares and except as disclosed in each of the Time of Sale Information and the Offering Memorandum, is owned by the CommissionIssuer or the Guarantors, as applicable, directly or indirectly, free and no proceeding for that purpose clear of all material liens, encumbrances, security interests, charges, restrictions on voting or transfer and claims other than liens, encumbrances, security interests, charges, restrictions on voting or transfer and claims created pursuant to Section 8A or permitted by the indebtedness disclosed in each of the Act Time of Sale Information and the Offering Memorandum under the headings “Description of Certain Financing Arrangements” or “Capitalisation.”
(j) This Agreement has been duly authorized, executed and delivered by the Issuer and each of the Issue Date Guarantors and constitutes a legal, valid and binding instrument enforceable against the Issuer and each of the Issue Date Guarantors in accordance with its terms subject, as to enforcement, to bankruptcy, fraudulent conveyance, insolvency, examinership, reorganization, moratorium, financial assistance and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or law) and the discretion of the court before which any Guarantor or proceeding may be brought and except as may be limited by means of public policy related to enforceability (collectively, the offering “Enforceability Exceptions”). On each Accession Date in respect of the Notes has relevant Post-Completion Guarantor, the Accession Agreement of such Post- Completion Guarantor will have been initiated orduly authorized, executed and delivered by such Post- Completion Guarantor and will constitute a legal, valid and binding instrument enforceable against such Post-Completion Guarantor in accordance with its terms, subject, as to enforcement, to the knowledge Enforceability Exceptions.
(k) The Issuer and each of the Guarantors, as applicable, have or at each relevant time will have full right, power and authority to execute and deliver the Transaction Documents to which it is a party and to perform their respective obligations hereunder and thereunder; and all action (corporate or other) required to be taken by the Issuer and each such Guarantor, as applicable, for the due and proper authorization, execution and delivery of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby at each relevant time will have been or has been duly and validly taken, when duly executed and delivered in accordance with its terms by each of the other parties thereto, and each Transaction Document, other than those explicitly addressed below in this Section 3, will constitute a valid and binding agreement enforceable against the Issuer and the Guarantors, threatened by the Commission; the Registration Statementin each case, as of the date hereofapplicable in accordance with their terms, and any post-effective amendment theretosubject, as of its applicable effective dateto enforcement, and at each deemed effective date with respect to the Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters ContentEnforceability Exceptions.
(e) (il) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and Indenture will not be duly authorized on or prior to the Closing Date 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 preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) The Indenture has been duly and validly authorized by the Issuer and each of the Issue Date Guarantors and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Issuer and each of the Issue Date Guarantors, enforceable against the Issuer and each of the Issue Date Guarantors in accordance with its terms, subject, as to enforcement, to the Enforceability Exceptions. On each Accession Date in respect of the relevant Post- Completion Guarantor, the Supplemental Indenture in respect of such Post-Completion Guarantor will be substantially in the form contemplated by the Indenture and will have been duly authorized by the Issuer and such Post-Completion Guarantor and, when duly executed and delivered in accordance with its terms by such Post-Completion Guarantor and the other parties thereto, will constitute valid and legally binding obligations of such Post-Completion Guarantor, enforceable against the Issuer enforceable and such Post-Completion Guarantor in accordance with its terms, except subject, as the enforcement thereof may be limited by bankruptcyto enforcement, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in Enforceability Exceptions.
(m) The Issue Date Guarantees will be prior to the Registration StatementClosing Date, duly authorized by each of the Disclosure Package and the Prospectus; (ii) Issue Date Guarantors and, when the Notes have been duly executed, authenticated, issued and validly authorized anddelivered as provided in the Indenture and paid for as provided herein, when executed will constitute a valid and authenticated by the Trustee legally binding obligation of each Issue Date Guarantor, enforceable against such Issue Date Guarantor in accordance with its terms, subject, as to enforcement, to the provisions Enforceability Exceptions. On each Accession Date in respect of the Indenture relevant Post-Completion Guarantor, the Post-Completion Guarantees of such Post-Completion Guarantor will have been duly authorized by such Post-Completion Guarantor and, upon due execution and delivered to and paid for by delivery of the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the relevant Supplemental Indenture, will constitute valid and legally binding obligations of the Issuer such Post-Completion Guarantor, enforceable against such Post-Completion Guarantor in accordance with their its terms, except subject, as to enforcement, to the enforcement thereof may be limited by bankruptcyEnforceability Exceptions and applicable limitations set forth in the Indenture, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, and will be entitled to the benefits of the Indenture and will conform in all material respects Indenture.
(n) On or prior to the description thereof contained in the Registration StatementClosing Date, the Disclosure Package Intercreditor Agreement will have been duly authorized by the Issuer and each Issue Date Guarantor and, when executed and delivered by the Issuer, each Issue Date Guarantor, the Trustee and the Prospectus; Security Agent and (iii) each Guarantee has been duly and validly authorized and the other parties thereto, the Intercreditor Agreement will on the Closing Date constitute the valid and legally binding obligation obligations of the applicable Guarantor Issuer and each Issue Date Guarantor, enforceable against each of them in accordance with its terms, except subject, as to enforcement, to the enforcement thereof may be limited by bankruptcyAgreed Security Principles and the Enforceability Exceptions and applicable limitations set forth in the Indenture, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, and will be entitled to the benefits of the Indenture and will conform Indenture. On each Accession Date in all material respects to respect of the description thereof contained in the Registration Statementrelevant Post-Completion Guarantor, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a corporation and the Issuer is a limited partnership, each Intercreditor Accession Deed of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(l) Each Subsidiary Post-Completion Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) will have been duly authorized by such Post-Completion Guarantor and, when duly and validly issued, are fully paid executed and nonassessable and are owned legally and beneficially delivered by such Post-Completion Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectusother parties thereto, will constitute valid and legally binding obligations of such Post-Completion Guarantor, enforceable against such Post-Completion Guarantor in accordance with its terms, subject, as to enforcement, to the Agreed Security Principles and the Enforceability Exceptions.
(o) There are no legal On or governmental actions, suits, inquiries, investigations or proceedings pending or, prior to the knowledge Closing Date, the Escrow Agreement will have been duly authorized by the Issuer and, when executed and delivered by each of the Issuer or any Guarantorparties thereto, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties will constitute valid and legally binding obligations of the Issuer, enforceable against the Guarantors or any of their subsidiaries is Issuer in accordance with its terms, subject, that (A) are required as to be described in enforcement, to the Registration StatementEnforceability Exceptions. On or prior to the Closing Date, the Disclosure Package or Escrow Equity Commitment will have been duly authorized by the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any Issuer and, when executed and delivered by each of the transactions contemplated hereby; or (C) could reasonably be expected parties thereto, will constitute valid and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with its terms, subject, as to have a Material Adverse Effectenforcement, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein describedEnforceability Exceptions.
(p) None Subject to paragraph (q) below, and subject to the limitations under the Agreed Security Principles, as of the IssuerClosing Date, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to security provider under each Security Document will have duly and validly authorized the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument Security Document to which the Issuer, the Guarantors or any of their subsidiaries it is a party or by which the Issuerto be executed on such date, Guarantors or any of their subsidiaries or any of their respective properties may be boundsubject, andas to enforcement, to the Issuer’s Enforceability Exceptions, the obligations expressed to be assumed by such security provider under each Security Document to which it is a party are legal, valid, binding and enforceable obligations of that party and each Security Document creates the Guarantor’s knowledgesecurity interests which that Security Document purports to create, no such default is expected. All agreements, contracts or other arrangements that and those security interests are material to the Issuer valid and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”)effective.
(q) (A) As Subject to the limitations under the Agreed Security Principles and as and to the extent required by the terms of the Security Documents, all filings and other actions necessary to perfect the security interest of the Security Agent, the Trustee and the holders of the Notes in the collateral to be created under the Security Documents will be duly made or taken on or prior to the Closing Date or, in respect of any Irish law governed Security Documents, within 21 days of the Closing Date, and are or will be in full force and effect as of the date of this Agreementcompletion of such filings or other actions necessary to perfect such security interest, subject to the Parent and its respective subsidiaries have good and marketable title in fee simple to, all terms of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will
Appears in 1 contract
Sources: Purchase Agreement
Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, represent, warrant and covenant to each Underwriter as follows:
(a) The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the provisions of the Act.
(b) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commission, and the Preliminary Prospectus included in the Disclosure Package, at the time of filing thereof, complied in all material respects with the Act, and the Preliminary Prospectus, as of its date and as of the date hereof, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(a) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below).
(i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content.
(e) (i) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and will not on the Closing Date 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 preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iiiii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(l) Each Subsidiary Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and owns either directly or indirectly through its respective subsidiaries have good and marketable title in fee simple tosubsidiaries, all of the real 954 properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus). To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will not result in a forfeiture or reversion of title thereof; (C) none of the Issuer, the Guarantors or any of their subsidiaries has received from any governmental authority any written notice of any condemnation of, or zoning change affecting any of, the Properties, and neither the Issuer nor any Guarantor knows of any such condemnation or zoning change which is threatened and which if consummated would reasonably be expected to have a Material Adverse Effect; (D) the leases under which the Guarantors or any of their subsidiaries leases the Properties as lessor (the “Leases”) are in full force and effect and have been entered into in the ordinary course of business of such entity, except as would not reasonably be expected to have a Material Ad
Appears in 1 contract
Representations and Warranties of the Issuer and the Guarantors. The Issuer and each of the Guarantors, jointly and severally, representrepresent and warrant to, warrant and covenant to agree with, each Underwriter Agent as follows:
(a) The Basic Prospectus and each Preliminary ProspectusA registration statement (No. 333-53638), if anyincluding a form of prospectus, included relating to $300,000,000 aggregate principal amount or issue price, as part the case may be, of debt and/or equity securities of the Issuer, including the Securities (together, the "REGISTERED SECURITIES") which, as supplemented by the prospectus supplement and the applicable Pricing Supplement, in each case in the form filed with the Securities and Exchange Commission (the "COMMISSION") pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "ACT") and as such prospectus may be further supplemented from time to time, shall be used in connection with sales of the Securities, has been filed with the Commission and has been declared effective under the Act. Such registration statement, as amended as of the Closing Date (as defined in Section 3(e) hereof), is hereinafter referred to as the "REGISTRATION STATEMENT", and the prospectus included in such Registration Statement Statement, as originally filed supplemented so as generally to describe the Securities and the terms of the offering of the Securities, including all material incorporated by reference therein, is hereinafter referred to as the "PROSPECTUS". Any reference in this Agreement to amending or as part supplementing the Prospectus shall be deemed to include the filing of materials incorporated by reference in the Prospectus after the Closing Date and any reference in this Agreement to any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed the Prospectus shall be deemed to include any such materials incorporated by reference in all material respects with the provisions of Prospectus after the Closing Date. The Issuer is eligible to use a Form S-3 registration statement under the Act.
(b) No order preventing or suspending On the use of effective date, the Preliminary Prospectus has been issued by the CommissionRegistration Statement conformed, and on the Preliminary Prospectus included in date of any subsequent post-effective amendment or amendments to the Disclosure PackageRegistration Statement, at the time of filing thereofsuch Registration Statement will conform, complied in all material respects with to the requirements of the Act, and the Preliminary Prospectus, as of its date and as of the date hereof, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(a) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below).
(i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amendedamended (the "TRUST INDENTURE ACT"), and the rules and regulations promulgated thereunder of the Commission (collectively, the “Trust Indenture Act”), "RULES AND REGULATIONS") 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content.
(e) (i) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and will not on the Closing Date contain include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading. The preceding sentence does not apply to statements in or omissions from , and on the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer Closing Date (as defined in Rule 405Section 3(e)), without taking account and at each of the times of acceptance and of delivery referred to in Section 6(a) hereof and at each of the times of amendment or supplementing referred to in Section 6(b) hereof (the Closing Date and each such time being herein sometimes referred to as a "REPRESENTATION DATE"), the Registration Statement and the Prospectus as then amended or supplemented will conform in all respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and neither the Registration Statement nor the Prospectus will include any determination by untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the Commission pursuant to Rule 405 that it is statements therein not necessary misleading, except that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus of such documents based upon and in conformity with written information furnished to the Underwriters ContentIssuer by any Agent specifically for use therein.
(hc) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) The Indenture Issuer has been duly incorporated and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a an existing corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state State of its formationGeorgia, with full corporate or partnership power, as applicable, power and authority to own, lease and operate own its properties and to conduct its business as described in the Registration Statement, the Disclosure Package Prospectus; and the Prospectus, and each Issuer is duly registered and qualified to conduct its business, and is do business as a foreign corporation in good standing, standing in each jurisdiction all other jurisdictions in which its ownership or place where the nature lease of its properties property or the conduct of its business requires such registration or qualification, except where the failure to be so register or qualify would qualified is not reasonably be expected likely to have result in a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth properties or results of operations of the Parent Issuer and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business whole (a “Material Adverse Effect”"MATERIAL ADVERSE EFFECT").
(ld) Each Subsidiary Guarantor Attached hereto as Annex I is a true and each complete list of the other all subsidiaries of the Parent (Issuer and all other than corporations, partnerships, joint ventures, limited liability companies and other entities in which the Issuer directly or indirectly owns 5% or more of its capital stock or any other equity or ownership interest. Annex I accurately sets forth the jurisdiction of organization of, and the Issuer) 's approximate percentage ownership interest in, each such subsidiary and other entity, and whether each such subsidiary and other entity listed thereon is a corporation, partnership, limited liability company or other type of entity.
(e) Each of IRT Partners, IRTCCII, IRT Management and IRT Alabama and any other "significant subsidiary" of the Issuer within the meaning of Rule 405 of the Act (individually, a "SIGNIFICANT SUBSIDIARY" and, collectively, the "SIGNIFICANT SUBSIDIARIES") has been duly incorporated or established, as the case may be, and is a validly existing corporation, limited partnership or limited liability company, limited partnership or trustas the case may be, as applicable, duly organized, validly existing and in good standing under the laws of the state jurisdiction of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effectincorporation or organization, with full corporate, limited liability company, partnership corporate or trust power, as applicable, other entity power and authority to own, lease and operate own its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, ; and each subsidiary of the Issuer is duly registered and qualified to conduct its businessdo business as a foreign corporation, and is limited partnership or limited liability company, as the case may be, in good standing, standing in each jurisdiction all other jurisdictions in which its ownership or place where the nature lease of its properties property or the conduct of its business requires such registration or qualification, except where the failure to be so register or qualify or be in good standing qualified would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and its respective subsidiaries have good and marketable title in fee simple to, all of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to all of the issued and outstanding capital stock or other equity interests in each Significant Subsidiary of the Issuer has been duly authorized and validly issued and, in the case of corporate subsidiaries, is fully paid and nonassessable; and the capital stock or other equity interests in each subsidiary owned by the Issuer’s , directly or through subsidiaries, is owned free from liens and encumbrances.
(f) The Amended and Restated Agreement of Limited Partnership of IRT Partners (the Guarantors’ "PARTNERSHIP AGREEMENT") has been duly and validly authorized, executed and delivered by the Issuer and is a valid and binding agreement, enforceable against the Issuer, as general partner, in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general principles of equity. To the Issuer's knowledge, each the Partnership Agreement has been duly executed and delivered by the other parties thereto and is a valid and binding agreement, enforceable against such parties in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general principles of equity. The Issuer owns, directly or through IRT Management, approximately 93% of the Properties complies partnership interests in IRT Partners.
(g) No holder of outstanding shares of capital stock of the Issuer has any registration rights with all applicable zoning laws, ordinances and regulations respect to such shares which would or could require such shares to be included in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will Registration Statement.
Appears in 1 contract
Sources: Agency Agreement (Irt Property Co)
Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, represent, warrant and covenant to each Underwriter as follows:
(a) The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the provisions of the Act.
(b) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commission, and the Preliminary Prospectus included in the Disclosure Package, at the time of filing thereof, complied in all material respects with the Act, and the Preliminary Prospectus, as of its date and as of the date hereof, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(a) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below).
(i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content.
(e) (i) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and will not on the Closing Date 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 preceding sentence does not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iiiii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(l) Each Subsidiary Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and owns either directly or indirectly through its respective subsidiaries have good and marketable title in fee simple tosubsidiaries, all of the real 1,213 properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus). To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will not result in a forfeiture or reversion of title thereof; (C) none of the Issuer, the Guarantors or any of their subsidiaries has received from any governmental authority any written notice of any condemnation of, or zoning change affecting any of, the Properties, and neither the Issuer nor any Guarantor knows of any such condemnation or zoning change which is threatened and which if consummated would reasonably be expected to have a Material Adverse Effect; (D) the leases under which the Guarantors or any of their subsidiaries leases the Properties as lessor (the “Leases”) are in full force and effect and have been entered into in the ordinary course of business of such entity, except as would not reasonably be expected to have a Material
Appears in 1 contract
Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, representrepresent and warrant to, warrant and covenant to agree with, each Underwriter as follows:set forth below in this Section 1.
(a) The Basic Issuer meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder (the “Securities Act”) and the Issuer has prepared and filed with the SEC an automatic shelf registration statement, as defined in Rule 405 under the Securities Act, on Form S-3 (File No. 333-238897), including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the SEC pursuant to Rule 424(b) under the Securities Act and deemed part of such registration statement pursuant to Rule 430A, 430B or 430C under the Securities Act, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended (the “Registration Statement”), including a related base prospectus, for registration under the Securities Act of the offering and sale of the Securities (the “Base Prospectus”). Such Registration Statement, including any amendments thereto filed prior to the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), became effective upon filing. The Issuer may have filed with the SEC, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements to the Base Prospectus relating to the Securities which is used prior to the filing of the Final Prospectus, together with the Base Prospectus (each, a “Preliminary Prospectus”), each of which has previously been furnished to you. The Issuer will file with the SEC a final prospectus supplement relating to the Securities in accordance with Rule 424(b) after the Execution Time, together with the Base Prospectus (the “Final Prospectus” and, together with the Base Prospectus and each Preliminary Prospectus, if anythe “Prospectus”). As filed, such Final Prospectus supplement shall contain all information required by the Securities Act and the rules thereunder, and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Issuer has advised you, prior to the Execution Time, will be included as part or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act. The initial Effective Date of the Registration Statement as originally filed or as part of was not earlier than the date three years before the Execution Time. The Issuer has not received from the SEC any amendment or supplement thereto, or filed notice pursuant to Rule 424, complied when so filed in all material respects with the provisions 401(g)(2) of the Act.
(b) Securities Act objecting to the use of the automatic shelf registration statement form and the Issuer has not otherwise ceased to be eligible to use the automatic shelf registration form. No stop order suspending the effectiveness of the Registration Statement is in effect, the SEC has not issued any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus has or the Final Prospectus and no proceedings for such purpose or pursuant to Section 8A of the Securities Act have been issued instituted or are pending or, to the best knowledge of the Issuer or the Guarantor, are contemplated or threatened by the CommissionSEC;
(i) On each Effective Date, the Registration Statement did, and when the Preliminary Final Prospectus included is first filed in accordance with Rule 424 (b) under the Disclosure PackageSecurities Act and on the Closing Date (as defined herein), at the time of filing thereofFinal Prospectus (and any supplement thereto) will, complied comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Preliminary ProspectusTrust Indenture Act of 1939, as of its date amended and as the rules and regulations of the date hereofSEC promulgated thereunder (the “Trust Indenture Act”) and the respective rules thereunder; on each Effective Date, at the Execution Time and on the Closing Date, the Registration Statement did not, does not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(a) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below).
(i) At the original effectiveness of the Registration Statement; provided, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendmenthowever, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time that the Issuer makes no representations or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) warranties as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, 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 Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture 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. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements the information contained in or omissions omitted from the Registration Statement, the Disclosure Package Statement or the Final Prospectus made (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Underwriters Content.Issuer by or on behalf of any Underwriter through the Representative specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof;
(e) (i) The Disclosure Package, and (ii) The documents incorporated by reference in each electronic road show, if any, when taken together as a whole with of the Registration Statement and the Disclosure Package, did not at when they were filed with the Applicable Time Commission conformed in all material respects to the requirements of the Exchange Act, and will not on the Closing Date contain none of such documents contained any untrue statement of a material fact or omit omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements ; and any further documents so filed and incorporated by reference in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(i) At the earliest time after the filing of the Registration Statement that and the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filedDisclosure Package, when such amendment was filed)documents become effective or are filed with the Commission, conformed as the case may be, will conform in all material respects with to the requirements of the Securities Act or the Exchange Act Act, as applicable, and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to will not contain any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(l) Each Subsidiary Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests, liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and its respective subsidiaries have good and marketable title in fee simple to, all of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will ;
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