Representations and Warranties of the YieldCo Parties. The YieldCo Parties, jointly and severally, represent and warrant to each of the Underwriters as follows: (a) (i) The Registration Statement on Form S-3 (File No. 333-234076) with respect to the Shares (1) has been prepared by the Company in conformity in all material respects with the requirements of the Act and the Rules and Regulations, (2) has been filed with the Commission under the Act, (3) became effective upon filing under Rule 462(e) under the Act, and (4) is an “automatic shelf registration statement” as defined in Rule 405 and was filed not earlier than the date that is three years prior to the Closing Date or the Option Closing Date (as applicable). Copies of the Registration Statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and Regulations) contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been made available by the Company to you. No post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. (ii) Since the time of initial filing of the Registration Statement, the Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405), and is eligible to use Form S-3 for the offering of the Common Stock under the Act, and to use the Registration Statement as an automatic shelf registration statement. The Company was not an “ineligible issuer” (as defined in Rule 405) at any such time or date. (iii) The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration statement form or any post-effective amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted or, to the YieldCo Parties’ knowledge, threatened by the Commission; no order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission; and the Prospectus containing the Rule 430B Information shall be filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the respective times the Original Registration Statement and each amendment thereto became effective, at any deemed effective date pursuant to Rule 430B(f)(2) and on the Closing Date or the Option Closing Date (as applicable), the Registration Statement complied and will comply, and the Prospectus and any amendments or supplements thereto will comply, in all material respects with the requirements of the Act and the Rules and Regulations. At each deemed effective date, pursuant to Rule 430B(f)(2), the Registration Statement did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12 hereof (b) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement is issued and on the Closing Date or the Option Closing Date (as applicable), will include an untrue statement of a material fact or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the Applicable Time and as of the Closing Date or the Option Closing Date (as applicable), as the case may be, neither (i) the General Disclosure Package, nor (ii) any individual Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12 hereof. (c) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. Each of the Subsidiaries has been duly organized and is validly existing as a corporation, limited liability company or similar entity in good standing under the laws of the jurisdiction of its organization with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Subsidiaries listed in Exhibit B hereto are the only Significant Subsidiaries (any Subsidiary that is an operating subsidiary and that represents more than 5% of the Company’s total assets or total revenue, determined based on the unaudited historical financial statements as of and for the six month period ending June 30, 2019 included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, being referred to as a “Significant Subsidiary”) of the Company. The Company and each of the Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification except where the failure to be so qualified would not (i) have, individually or in the aggregate, a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and of the Subsidiaries, taken as a whole, or (ii) prevent the consummation of the transactions contemplated hereby (the occurrence of any such effect or any such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse Effect”). The outstanding shares of share capital or other ownership interests of each of the Subsidiaries (including, without limitation, the Class A Units and the incentive distribution rights of Terra LLC) have been duly authorized and validly issued, are fully paid and, with respect to shares of share capital, non-assessable and, other than as described in the Registration Statement, the General Disclosure Package or the Prospectus, are owned by the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of share capital or ownership interests in the Subsidiaries are outstanding. (d) The shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the Company have been duly authorized and when issued and delivered by the Company and paid for as contemplated herein will be validly issued, fully paid and non-assessable; and no preemptive or similar rights of shareholders exist with respect to any of the Shares or the issue and sale thereof. Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any Common Stock; (i) Brookfield, a limited partnership formed under the laws of the Province of Ontario, Canada and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 14% of the voting securities of the Company, Orion US Holdings 1 L.P. (“Orion”), a limited partnership incorporated under the laws of Bermuda and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 51% of the voting securities of the Company, and BRE Delaware Inc., a Delaware corporation and a subsidiary of Brookfield Asset Management Inc., beneficially owns all of the incentive distribution rights of Terra LLC and (ii) the Company owns all of Terra LLC’s outstanding Class A Units. (e) The information with respect to the Company’s authorized capitalization set forth in the Registration Statement and the Prospectus (and any similar information contained in the General Disclosure Package) in the column entitled “Actual” under the caption “Capitalization” is true and correct. All of the Shares conform to the description thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus. The form of certificates for the Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation and to any requirements of the Company’s organizational documents. Subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise specifically stated therein or in this Agreement, the Company has not: (i) issued any securities (other than grants of equity based awards pursuant to the Company’s equity incentive and employee benefit plans); (ii) incurred any material liability or obligation, direct or contingent, for borrowed money; or (iii) declared or paid any dividend or made any other distribution on or in respect to its share capital.
Appears in 1 contract
Sources: Equity Underwriting Agreement (TerraForm Power, Inc.)
Representations and Warranties of the YieldCo Parties. The YieldCo Parties, jointly and severally, represent and warrant to each of the Underwriters as follows:
(a) (i) The Registration Statement A registration statement on Form S-3 S-1 (File No. 333-234076223753) with respect to the Shares (1) has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations (the “Rules and Regulations, ”) of the Securities and Exchange Commission (2the “Commission”) thereunder and has been filed with the Commission under the Act, (3) became effective upon filing under Rule 462(e) under the Act, and (4) is an “automatic shelf registration statement” as defined in Rule 405 and was filed not earlier than the date that is three years prior to the Closing Date or the Option Closing Date (as applicable)Commission. Copies of the Registration Statementsuch registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and Regulations) contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been made available by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A under the Act and contained in the Prospectus referred to below, and has become effective under the Act. No post-effective amendment to the Registration Statement has been filed as of the date of this equity underwriting agreement (this “Agreement.
(ii) Since ”). “Prospectus” means the form of prospectus first filed with the Commission pursuant to and within the time of initial filing of the Registration Statement, the Company has been, and continues to be, a “well-known seasoned issuer” (as defined limits described in Rule 405), and is eligible to use Form S-3 for the offering of the Common Stock 424(b) under the Act, and to use . Each preliminary prospectus included in the Registration Statement as an automatic shelf registration statement. The Company was not an “ineligible issuer” (as defined in Rule 405) at any such time or date.
(iii) The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting prior to the use of time it becomes effective is herein referred to as a “Preliminary Prospectus.” Unless expressly stated otherwise or the automatic shelf registration statement form or context otherwise requires, any post-effective amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted or, reference to the YieldCo Parties’ knowledgeProspectus, threatened by the Commission; no order preventing or suspending the use of the Preliminary Prospectus, the Prospectus Registration Statement or any Issuer Free Writing Prospectus has been issued by the Commission; and the Prospectus containing the Rule 430B Information General Disclosure Package (as defined below) shall be deemed to refer to and include all information filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the respective times the Original Registration Statement and each amendment thereto became effective, at any deemed effective date pursuant to Rule 430B(f)(2the Act or Section 13(a), 13(c) and on or 15(d) of the Closing Date or the Option Closing Date Exchange Act (as applicabledefined herein), on or prior to the Registration Statement complied and will comply, and the Prospectus and any amendments or supplements thereto will comply, in all material respects with the requirements date of the Act and the Rules and Regulations. At each deemed effective date, pursuant to Rule 430B(f)(2)Prospectus, the Registration Statement did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; providedPreliminary Prospectus, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12 hereof
(b) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement is issued and on the Closing Date or the Option Closing Date (as applicable), will include an untrue statement of a material fact or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the Applicable Time and as of the Closing Date or the Option Closing Date (as applicable)General Disclosure Package, as the case may be, neither (i) to the extent such information is incorporated by reference in the Prospectus, the Preliminary Prospectus, the Registration Statement or the General Disclosure Package. All documents filed under the Exchange Act and incorporated by reference in the Prospectus, the Preliminary Prospectus, the Registration Statement or the General Disclosure Package, nor (ii) any individual Limited Use Free Writing Prospectusas the case may be, when considered together with the General Disclosure Package, included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus, in reliance upon, and in conformity with, written information furnished to amendment or supplement thereto are hereinafter called the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12 hereof“Exchange Act Reports.
(c) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. Each of the Subsidiaries has been duly organized and is validly existing as a corporation, limited liability company or similar entity in good standing under the laws of the jurisdiction of its organization with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Subsidiaries listed in Exhibit B hereto are the only Significant Subsidiaries (any Subsidiary that is an operating subsidiary and that represents more than 5% of the Company’s total assets or total revenue, determined based on the unaudited historical financial statements as of and for the six month period ending June 30, 2019 included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, being referred to as a “Significant Subsidiary”) of the Company. The Company and each of the Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification except where the failure to be so qualified would not (i) have, individually or in the aggregate, a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and of the Subsidiaries, taken as a whole, or (ii) prevent the consummation of the transactions contemplated hereby (the occurrence of any such effect or any such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse Effect”). The outstanding shares of share capital or other ownership interests of each of the Subsidiaries (including, without limitation, the Class A Units and the incentive distribution rights of Terra LLC) have been duly authorized and validly issued, are fully paid and, with respect to shares of share capital, non-assessable and, other than as described in the Registration Statement, the General Disclosure Package or the Prospectus, are owned by the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of share capital or ownership interests in the Subsidiaries are outstanding.
(d) The shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the Company have been duly authorized and when issued and delivered by the Company and paid for as contemplated herein will be validly issued, fully paid and non-assessable; and no preemptive or similar rights of shareholders exist with respect to any of the Shares or the issue and sale thereof. Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any Common Stock; (i) Brookfield, a limited partnership formed under the laws of the Province of Ontario, Canada and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 14% of the voting securities of the Company, Orion US Holdings 1 L.P. (“Orion”), a limited partnership incorporated under the laws of Bermuda and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 51% of the voting securities of the Company, and BRE Delaware Inc., a Delaware corporation and a subsidiary of Brookfield Asset Management Inc., beneficially owns all of the incentive distribution rights of Terra LLC and (ii) the Company owns all of Terra LLC’s outstanding Class A Units.
(e) The information with respect to the Company’s authorized capitalization set forth in the Registration Statement and the Prospectus (and any similar information contained in the General Disclosure Package) in the column entitled “Actual” under the caption “Capitalization” is true and correct. All of the Shares conform to the description thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus. The form of certificates for the Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation and to any requirements of the Company’s organizational documents. Subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise specifically stated therein or in this Agreement, the Company has not: (i) issued any securities (other than grants of equity based awards pursuant to the Company’s equity incentive and employee benefit plans); (ii) incurred any material liability or obligation, direct or contingent, for borrowed money; or (iii) declared or paid any dividend or made any other distribution on or in respect to its share capital.
Appears in 1 contract
Sources: Equity Underwriting Agreement (TerraForm Power, Inc.)
Representations and Warranties of the YieldCo Parties. The YieldCo Parties, jointly and severally, represent and warrant to each of the Underwriters as follows:
(a) (i) The Registration Statement A registration statement on Form S-3 S-1 (File No. 333-234076204033) with respect to the Shares (1) has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations (the “Rules and Regulations, ”) of the Securities and Exchange Commission (2the “Commission”) thereunder and has been filed with the Commission under the Act, (3) became effective upon filing under Rule 462(e) under the Act, and (4) is an “automatic shelf registration statement” as defined in Rule 405 and was filed not earlier than the date that is three years prior to the Closing Date or the Option Closing Date (as applicable)Commission. Copies of the Registration Statementsuch registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and Regulations) contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been made available by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A under the Act and contained in the Prospectus referred to below, and has become effective under the Act. No post-effective amendment to the Registration Statement has been filed as of the date of this equity underwriting agreement (this “Agreement.
(ii) Since ”). “Prospectus” means the form of prospectus first filed with the Commission pursuant to and within the time of initial filing of the Registration Statement, the Company has been, and continues to be, a “well-known seasoned issuer” (as defined limits described in Rule 405), and is eligible to use Form S-3 for the offering of the Common Stock 424(b) under the Act, and to use . Each preliminary prospectus included in the Registration Statement as an automatic shelf registration statement. The Company was not an “ineligible issuer” (as defined in Rule 405) at any such time or date.
(iii) The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting prior to the use of time it becomes effective is herein referred to as a “Preliminary Prospectus.” Unless expressly stated otherwise or the automatic shelf registration statement form or context otherwise requires, any post-effective amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted or, reference to the YieldCo Parties’ knowledgeProspectus, threatened by the Commission; no order preventing or suspending the use of the Preliminary Prospectus, the Prospectus Registration Statement or any Issuer Free Writing Prospectus has been issued by the Commission; and the Prospectus containing the Rule 430B Information General Disclosure Package (as defined below) shall be deemed to refer to and include all information filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). At the respective times the Original Registration Statement and each amendment thereto became effective, at any deemed effective date pursuant to Rule 430B(f)(2the Act or Section 13(a), 13(c) and on or 15(d) of the Closing Date or the Option Closing Date Exchange Act (as applicabledefined herein), on or prior to the Registration Statement complied and will comply, and the Prospectus and any amendments or supplements thereto will comply, in all material respects with the requirements date of the Act and the Rules and Regulations. At each deemed effective date, pursuant to Rule 430B(f)(2)Prospectus, the Registration Statement did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; providedPreliminary Prospectus, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12 hereof
(b) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement is issued and on the Closing Date or the Option Closing Date (as applicable), will include an untrue statement of a material fact or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the Applicable Time and as of the Closing Date or the Option Closing Date (as applicable)General Disclosure Package, as the case may be, neither (i) to the extent such information is incorporated by reference in the Prospectus, the Preliminary Prospectus, the Registration Statement or the General Disclosure Package. All documents filed under the Exchange Act and incorporated by reference in the Prospectus, the Preliminary Prospectus, the Registration Statement or the General Disclosure Package, nor (ii) any individual Limited Use Free Writing Prospectusas the case may be, when considered together with the General Disclosure Package, included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus, in reliance upon, and in conformity with, written information furnished to amendment or supplement thereto are hereinafter called the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12 hereof“Exchange Act Reports.
(c) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. Each of the Subsidiaries has been duly organized and is validly existing as a corporation, limited liability company or similar entity in good standing under the laws of the jurisdiction of its organization with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Subsidiaries listed in Exhibit B hereto are the only Significant Subsidiaries (any Subsidiary that is an operating subsidiary and that represents more than 5% of the Company’s total assets or total revenue, determined based on the unaudited historical financial statements as of and for the six month period ending June 30, 2019 included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, being referred to as a “Significant Subsidiary”) of the Company. The Company and each of the Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification except where the failure to be so qualified would not (i) have, individually or in the aggregate, a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and of the Subsidiaries, taken as a whole, or (ii) prevent the consummation of the transactions contemplated hereby (the occurrence of any such effect or any such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse Effect”). The outstanding shares of share capital or other ownership interests of each of the Subsidiaries (including, without limitation, the Class A Units and the incentive distribution rights of Terra LLC) have been duly authorized and validly issued, are fully paid and, with respect to shares of share capital, non-assessable and, other than as described in the Registration Statement, the General Disclosure Package or the Prospectus, are owned by the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of share capital or ownership interests in the Subsidiaries are outstanding.
(d) The shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the Company have been duly authorized and when issued and delivered by the Company and paid for as contemplated herein will be validly issued, fully paid and non-assessable; and no preemptive or similar rights of shareholders exist with respect to any of the Shares or the issue and sale thereof. Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any Common Stock; (i) Brookfield, a limited partnership formed under the laws of the Province of Ontario, Canada and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 14% of the voting securities of the Company, Orion US Holdings 1 L.P. (“Orion”), a limited partnership incorporated under the laws of Bermuda and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 51% of the voting securities of the Company, and BRE Delaware Inc., a Delaware corporation and a subsidiary of Brookfield Asset Management Inc., beneficially owns all of the incentive distribution rights of Terra LLC and (ii) the Company owns all of Terra LLC’s outstanding Class A Units.
(e) The information with respect to the Company’s authorized capitalization set forth in the Registration Statement and the Prospectus (and any similar information contained in the General Disclosure Package) in the column entitled “Actual” under the caption “Capitalization” is true and correct. All of the Shares conform to the description thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus. The form of certificates for the Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation and to any requirements of the Company’s organizational documents. Subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise specifically stated therein or in this Agreement, the Company has not: (i) issued any securities (other than grants of equity based awards pursuant to the Company’s equity incentive and employee benefit plans); (ii) incurred any material liability or obligation, direct or contingent, for borrowed money; or (iii) declared or paid any dividend or made any other distribution on or in respect to its share capital.
Appears in 1 contract
Sources: Equity Underwriting Agreement (TerraForm Power, Inc.)
Representations and Warranties of the YieldCo Parties. The YieldCo Parties, jointly and severally, represent and warrant to each of the Underwriters as follows:
(a) (i) The Registration Statement A registration statement on Form S-3 S-1 (File No. 333-234076200830) with respect to the Shares (1) has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations (the “Rules and Regulations, ”) of the Securities and Exchange Commission (2the “Commission”) thereunder and has been filed with the Commission under the Act, (3) became effective upon filing under Rule 462(e) under the Act, and (4) is an “automatic shelf registration statement” as defined in Rule 405 and was filed not earlier than the date that is three years prior to the Closing Date or the Option Closing Date (as applicable)Commission. Copies of the Registration Statementsuch registration statement, including any amendments thereto, the preliminary prospectuses (meeting the requirements of the Rules and Regulations) contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been made available by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A under the Act and contained in the Prospectus referred to below, and has become effective under the Act. No post-effective amendment to the Registration Statement has been filed as of the date of this equity underwriting agreement (this “Agreement.
(ii) Since ”). “Prospectus” means the time form of initial filing of the Registration Statement, the Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405), and is eligible to use Form S-3 for the offering of the Common Stock under the Act, and to use the Registration Statement as an automatic shelf registration statement. The Company was not an “ineligible issuer” (as defined in Rule 405) at any such time or date.
(iii) The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration statement form or any post-effective amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted or, to the YieldCo Parties’ knowledge, threatened by the Commission; no order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission; and the Prospectus containing the Rule 430B Information shall be prospectus first filed with the Commission in the manner pursuant to and within the time period required by limits described in Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective under the Act. Each preliminary prospectus included in accordance with the requirements of Rule 430B). At the respective times the Original Registration Statement and each amendment thereto became effective, at any deemed effective date pursuant to Rule 430B(f)(2) and on the Closing Date or the Option Closing Date (as applicable), the Registration Statement complied and will comply, and the Prospectus and any amendments or supplements thereto will comply, in all material respects with the requirements of the Act and the Rules and Regulations. At each deemed effective date, pursuant to Rule 430B(f)(2), the Registration Statement did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished prior to the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, time it being understood and agreed that the only such information becomes effective is that described in Section 12 hereof
(b) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement is issued and on the Closing Date or the Option Closing Date (as applicable), will include an untrue statement of a material fact or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the Applicable Time and as of the Closing Date or the Option Closing Date (as applicable), as the case may be, neither (i) the General Disclosure Package, nor (ii) any individual Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Underwriter through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 12 hereof.
(c) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. Each of the Subsidiaries has been duly organized and is validly existing as a corporation, limited liability company or similar entity in good standing under the laws of the jurisdiction of its organization with requisite power and authority to own or lease its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus. The Subsidiaries listed in Exhibit B hereto are the only Significant Subsidiaries (any Subsidiary that is an operating subsidiary and that represents more than 5% of the Company’s total assets or total revenue, determined based on the unaudited historical financial statements as of and for the six month period ending June 30, 2019 included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, being herein referred to as a “Significant SubsidiaryPreliminary Prospectus.”) of the Company. The Company and each of the Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification except where the failure to be so qualified would not (i) have, individually or in the aggregate, a material adverse effect on the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and of the Subsidiaries, taken as a whole, or (ii) prevent the consummation of the transactions contemplated hereby (the occurrence of any such effect or any such prevention described in the foregoing clauses (i) and (ii) being referred to as a “Material Adverse Effect”). The outstanding shares of share capital or other ownership interests of each of the Subsidiaries (including, without limitation, the Class A Units and the incentive distribution rights of Terra LLC) have been duly authorized and validly issued, are fully paid and, with respect to shares of share capital, non-assessable and, other than as described in the Registration Statement, the General Disclosure Package or the Prospectus, are owned by the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of share capital or ownership interests in the Subsidiaries are outstanding.
(d) The shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the Company have been duly authorized and when issued and delivered by the Company and paid for as contemplated herein will be validly issued, fully paid and non-assessable; and no preemptive or similar rights of shareholders exist with respect to any of the Shares or the issue and sale thereof. Neither the filing of the Registration Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any Common Stock; (i) Brookfield, a limited partnership formed under the laws of the Province of Ontario, Canada and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 14% of the voting securities of the Company, Orion US Holdings 1 L.P. (“Orion”), a limited partnership incorporated under the laws of Bermuda and an entity formed by affiliates of Brookfield Asset Management, Inc., beneficially owns 51% of the voting securities of the Company, and BRE Delaware Inc., a Delaware corporation and a subsidiary of Brookfield Asset Management Inc., beneficially owns all of the incentive distribution rights of Terra LLC and (ii) the Company owns all of Terra LLC’s outstanding Class A Units.
(e) The information with respect to the Company’s authorized capitalization set forth in the Registration Statement and the Prospectus (and any similar information contained in the General Disclosure Package) in the column entitled “Actual” under the caption “Capitalization” is true and correct. All of the Shares conform to the description thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus. The form of certificates for the Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation and to any requirements of the Company’s organizational documents. Subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise specifically stated therein or in this Agreement, the Company has not: (i) issued any securities (other than grants of equity based awards pursuant to the Company’s equity incentive and employee benefit plans); (ii) incurred any material liability or obligation, direct or contingent, for borrowed money; or (iii) declared or paid any dividend or made any other distribution on or in respect to its share capital.
Appears in 1 contract
Sources: Equity Underwriting Agreement (TerraForm Power, Inc.)